
    James S. McClure vs. Robert B. Houston.
    The statute (How. & Hutch. 481, § 8,) authorizes the circuit judge to take, under advisement, in vacation, motions for new trials, and to give his opinion in writing, within a prescribed time, to the clerk ; where, therefore, a circuit judge has so taken a motion for new trial, under advisement, and has in the proper time given his opinion in writing, granting the new trial, it is error for the circuit court at its next term to strike the case from the docket; if there were error in the opinion of the judge granting the new trial, the same statute grants the right to except, and take writs of error to such judgment to the high court of errors and appeals.
    In error from the circuit court of Lafayette county; Hon. Hugh R. Miller, judge.
    This was an action of slander, commenced in the circuit court of Lafayette county, by James S. McClure against Robert B. Houston. The latter plead justification, and upon issue joined thereon the jury found the plea false, and assessed the plaintiff’s damages at three dollars and fifty cents. A motion was then entered by plaintiff’s attorney, on the 28th of May, 1845, for a new trial, because the damages were inadequate, and inconsistent with the issues as found by the jury. At the May term, 1845, this motion was taken under advisement by the judge, J. M. Howry, Esq., then presiding, who, on the 20th September, 1845, returned the papers with a written opinion sustaining the motion for a new trial. At the April term, 1846, upon motion of defendant’s counsel, the cause was ordered by Judge Miller to be stricken from the docket, as having been irn-properly placed thereon, because the testimony had not been reduced to writing by the judge granting the new trial; to which order or judgment of the court below plaintiff excepted, and brings the case to this court.
    
      D. C. Glenn, for plaintiff in error.
    1. In my view this was an erroneous and somewhat arbitrary proceeding. If the new trial was improperly granted it was error, and the party’s remedy was by appeal or writ of error.
    2. The cause assigned by the judge for thus turning the plaintiff out of court, cannot be noticed in this case. It can only be done where the appeal is direct, assigning such failure as error. But even if it could it seems that it would not be deemed error. Though the granting or refusing a new trial is made error by our statute, still the appellate court will not interfere unless the record shows great improvidence in its being done, and leaves it pretty much to the discretion of the nisi prius judge, as it formerly stood. The statute in question, as to new trials, is merely directory to the court, and it having exercised its discretion this court will presume it has been wisely done in a matter within its jurisdiction, unless the contrary is manifestly made .to appear. Robinson’s Va. Prac. 378. "
   Mr. Justice ThacheR

delivered the opinion of the court.

In this case, the judge of the circuit court took under advisement a motion for a new trial, which motion he sustained in an opinion in writing, within the limit of time prescribed by the statute. How. & Hutch. 481, § 8. At a subsequent term, the cause, upon motion of the opposite party to the original motion, was directed to be stricken from the docket of the circuit court.

It was error in the circuit court to direct the cause to be stricken from the docket. If there were any error in the judgment of the circuit court sustaining the motion for a new trial, the same statute which authorizes the proceeding of the circuit court in taking causes under advisement, grants the right to except and take writs of error to such judgments returnable to this court.

Judgment reversed, and the cause directed to be reinstated upon the docket of the circuit court of Lafayette county, for further proceedings.  