
    
      James Everitt, Surrogate of Orange County, ads. The People of the State of New-York, ex. rel. Charles Beach.
    HOFFMAN moved to enter a vacatur on a rule for a peremptory mandamus and set aside the mandamus which had been issued on the following facts :
   A rule was obtained in July term, 1802, that the defendant show cause, by October term, why a mandamus should not issue, compelling him to proceed in a cause then depending before him, concerning the will of Thomas Beach.

A return was made to this rule, which, from the de- . fendant’s counsel being unavoidably detained on his way to Albany, was not filed until the third day of October term.

On the first day of October term, Charles Beach attended, and obtained a rule for the mandamus ; and on the third day, on filing the return, that rule way vacated.

Notice of the vacatur was given to the person who had acted in behalf of Beach, and obtained the first rule ; but Beach had previously left Albany, and the mandamus issued.

At the last term Mr. Colden was charged With the business, to make the proper application to the court, and to oppose a peremptory mandamus. . On Mr. Golden's way to Albany, he met Mr. Morton, the attorney for Beach, when it was agreed, that all further proceedings should be stayed until the present term. Mr. Colden, therefore, did not further attend to the cause.

The relator, Beach, attended at Albany at the close of the term, employed other counsel, and obtained a role for a peremptory mandamus, which has been issued.

Motion granted.  