
    William Carrol and Daniel Whiting vs. Charles Caldwell and John Botts.
    An appeal, in the nature of a writ of error, will not lie, unless there he a final judgment in the court below.
    If the jury return a verdict for the plaintiff, and a new trial is moved for by the defendant, and granted by the court, and an exception is taken to the opinion of the court in grantingthe new trial,no appeal in the nature of a writ of error will lie, until the cause be again tried, and a final judgment rendered.
    This was an action of assumpsit, brought by the defendants in error, against the plaintiffs in error, to recover from them the value of a pair of patent balances, alleged to have been shipped on board the defendant’s steam boat at New Orleans, to be delivered in good order at Boyd’s landing, near Nashville, to said defendants in error, and which the declaration averred never were delivered. The defendants pleaded non assumpsit.
    At the May term, 1826, of the Davidson circuit court, the cause was tried, and a verdict returned by the jury for the plaintiffs below, for 258 dollars. The defendants obtained a rule, to show cause why a new trial should not be granted, which the court, after argument, made absolute. The plaintiffs excepted to the opinion of the court, in granting the new trial, had their exception entered of record, and prosecuted an appeal in the nature of a writ of error to this court.
    A motion was made at this term, to dismiss the writ of error, upon the ground that there was no final judgment in the cause; which motion was argued by
    O. B. Hayes for plaintiffs in error.
    
      Washington for defendants in error.
   Per Curiam.

In this case the plaintiff below obtained a verdict for 258 dollars. A new trial was m.ovedfor by the defendants, and granted by the court. Exception was taken to the opinion of the court, in awarding a new trial, and an appeal in error taken to this court. '

A motion is now made to strike the cause from the docket. The only question presented for consideration is, whether, the cause was not prematurely brought to this court?

We are of opinion that it must be dismissed — there was no final judgment in the cause, nor could there be after the new trial was awarded, until another trial could be had in the court below. (Vide Comyn’s Digest, Pleader 3, B. 7; Joslin vs. Sappington, 1 Ten. Rep. 222.)

Let-the cause be dismissed and remanded to the circuit court, to be tried de novo.  