
    Haight against Turner.
    Án afildaVif on which a motion is founded, for é táandamus to a court of commonple’ag, must not be entitled. If a court of common pleas, aft ter a jury have found a Verdict, refus J td £ive judgment thereon, but grant a nevir trial on a • mere allegation of irregtH larity, but in triith becausd the verdict was against evidence, thfó court \rtil * . grant a man- * damus, at the' instance of the? party who wishes the judgment to be entered, commanding (he court of common pleas to render judgment onE the verdicts it áppeáringthaf neither of the judges, before' whom the cause .was tried, was a counsellor a£ preme court,
    
      PlSK, in behalf of the defendant, moved for a mandamus to be directed to the judges of the court of common pleas of the«county of Orange, commanding them to give judgment in this effuse, then pending before them. He offered affidavits of the facts on which his motion was founded, and which were entitled Reuben Turner adsm. James Háight.
    
    
      J. Hamilton, for the plaintiff,
    objected to the reading of the affidavits, because they were wrongly entitled.
    
      The Court said,
    that FisJc might proceed'to read the affidavits, and'they would afterwards consider of the formal objection.
    The affidavits stated, that the suit in the court below was brought to recover money won by the defendant, of the plaintiff at gaming, under the statute. (Latis of N. Y.vol. 1. p. 231.) One witness oniy was produced, and the jury found a verdict for the plaintiff for twenty-five dollars. The defendant’s counsel then moved the court belo_w for judgment, and that the plaintiff pay to. the defendant his costs. (Latos of N. Y. vol. 1. jp. 529.) But the plaintiff’s counsel moved for a new trial, on the ground of irregularity, alleging that the jury, according to the evidence before them, ought to have found a verdict for a much larger sum; and the court of common pleas, without hearing evidence of the irregularity, ordered a newi trial of the cause. It appeared, that neither of the judges before whom the cause was tried, was of the degree a counSellor at law in the supreme court.' (Laws of N. Y< vol. l. p. 395.-).
    The cases cited were Ryersv* Hillyer, 1 Caines, 112. Cases, 117,118. 3 Term. 253. Sir, 113. 392. 15 Viner, Ah. 185.
   # Per Curiam.

It is a settled rule of practice m the Jbn~ glish courts, that on a motion for an information, or in air affidavit to hold to bail, the affidavit must' not be entitled* and if it be entitled, it cannot be read. The reason assigned is, that there is, at’ the limeno cause pending' in "the court, and' an indictment for perjury in malting such an affidavit, must fail, as it could not be shown that such' a cause existed in the court in which the affidavit was^ made. The present case comes within, the reason of the _ , r _ 7 English rule. The cases' of Brooke v. Ewer, and Bayley v. Broome, cited from Strange, prove nothing on this point, as the reporter might have taken tfie title of the cause elsewhere. The affidavits, therefore, cannot be received. But on the merits, the court would have sustained the motion. The alleged ground of ^regularity was a mere pretext, and if it were allowed to prevail, the courts of common pleas might grant new trials in every case, and the provisions of the statute be thereby defeated. The verdict below was set aside as being against evidence. The °f mandamus is the proper remedy in this cáse. But as affidavits.ought not to have been entitled, they cannot be received, and the motion must, therefore, be denied.

Rule refused. 
      
      
        Strange, 704. Andrews, 213. 6 Term, 640 1 Bos. & Pul. 36. 827. 7 Term, 454.
      
     
      
      
        Strange 113. 392.
     
      
      
         Where a court of Common Pleas refuses to give judgment in a canse before them, the Supreme Court will not grant a mandamus, until after a rule to show cause has been granted. The people v. the Judges of Cayuga, &c. 2 John. Cas. 68. See, also, id. 72. It may notbe useless to introduce here a more recent and more general decision in relation to this subject. Where the inferior tribunal has a discretion, and proceeds to exercise it, the supreme court have no jurisdiction to control that discretion By mandamus. Butif subordinate public agents, refuse to act, or to entertain the question for their discretion, in cases where the law enjoins them to do the aet required, the court will enforce obedience to the law by mandamus, in cases where no other legal remedy exists. Hull v. Supervisors of Oneida. 19 John. 259.
     