
    *Daniel T. Hankins vs. Robert I. Bennet.
    The Supreme Court will not interfere by mandamus to compel the Court of Common Pleas to restore a rule vacated by them because the reason in support of the rule had not been served upon the adverse party, in pursuance of one of the printed rules of that court.
    This was an application for a mandamus to be directed to .the Court of Common Pleas of the county of Warren, to restore an appeal, and came before the court' upon the following state of the case agreed on by the attorneys of the parties:
    “The above appeal was made to the term’of December, A. D. 1829. In' the term, of February in the present year of our Lord, eighteen hundred and thirty, the- above appeal and all other matters in difference were by rule referred to John More, Wilson Hunt, and Jacob Curtis, and their report, made to the court aforesaid at the next term thereof, was to be conclusive on the parties. By a written agreement between the above parties, subjoined to a copy of the above rule of reference, made in consequence of the indisposition of Wilson Hunt, one of the referees in said rule named, Henry Mingle was substituted in the place of said Wilson Hunt. John More, Jacob Curtis and Henry Mingle, before named, made and executed, under their hands and, seals, an award between the parties in the above case, bearing date the tenth day of April, now last past, finding due to the said Eobert I. Bennet, the appellee, the sum of twenty-one dollars and seventy-two cents. The above award was returned and filed to and at the term of June last of said court, and judgment prayed thereon nisi — Whereupon application was made to the said court in behalf of the appellant for a rule to shew cause why the said award of the referees should not be set aside. The said cpurt granted said rule, and thereupon reasons in support of said rule were filed pro ut a copy of said reasons annexed. At the August term, 1830, the appeal being called, 'a motion was made in behalf of the appellee, to discharge the rule aforesaid, because a copy of the reasons filed had not been duly served upon the appellee. The appellant upon his oath testified that he served a copy of the reasons aforesaid, on the day preceding the first day of the said term, by leaving a copy at the appellee’s house, the appellee not being at home. The ^appellant’s counsel insisted that there was no rule of court requiring the service of any copy of reasons in such case, and the counsel for the appellee insisted that there was; the rules of the Court of Common Pleas were submitted to the inspection of the court, pro ut the same, and thereupon after argument, the court discharged the rule because there was among said rules, a rule applicable to the case, and a copy of the reasons ought to have been served within the time prescribed.
    The above case being agreed upon between the parties and their counsel, it is agreed between them, that application may be made to the Supreme Court, for a peremptory mandamus to be directed to the Common Pleas aforesaid, commanding them to restore said appeal; and if the Supreme Court shall be of opinion that the same was improperly dismissed, that it be restored by consent; otherwise, that proceedings may be had upon the judgment of dismission, according to law.”
    
      Ryerson, for the mandamus.
    
      Morris, contra.
   The court refused to interfere, considering a mandamus not a proper remedy in such a case.  