This is an application for a writ of mandamus, commanding W. Momona, one of the circuit Judges of the third Judicial District, to grant an appeal from a decision made by said Judge at chambers, on the 18th of April, 1853, whereby the defendant was convicted of manufacturing intoxicating drinks and selling the same to natives.

It is admitted by the counsel for the defendant, that Aiko has not complied with the statute relating to appeals, which requires any party wishing an appeal to give notice of the same within ten days after rendering the decision, and within thirty days thereafter to pay the costs accrued and deposit a good and sufficient bond in the penal sum of $50 to pay the costs further to accrue in case he is found guilty in the court above. But it is said that the neglect of the defendant to comply with the Statute arose partly from the absence of the judge and in part from his assurance that the defendant could have his appeal at any time, he having given notice of the same.

The motion for a mandamus was made before Judge Ii, at the last September Term of the third Judicial District, and denied, Judge Ii having satisfied himself from the statements of the Circuit Judge, that the facts set forth in the plaintiff’s petition were not true; and if those statements were on record, we should not for a moment hesitate to deny the motion which is renewed before this court. But as they are not, we hereby order that a rule be granted, commanding the Circuit Judge to show cause, within twenty days after service of the petition and the order of this court, why the writ of mandamus commanding him to grant the appeal should not be issued.