
    William Gray versus John D. Bridge et al.
    
    An order of the Court of Common Pleas, made in pursuance of St. 1820, c. 79, § 7, granting or refusing a new trial, is a matter within the discretion of that court, and therefore not subject to any control or revision by the Supreme Court.
    The petition sets forth, that the respondents brought an action of assumpsit against Gray and one Usher, formerly partners, in which the ad damnum was laid at $75 ; that the writ was returnable to the Court of Common Pleas at October term 1828 ; that at that term Usher was defaulted, but Gray appeared ; that the action was continued from term to term, until April term 1830, when Gray pleaded that he and Usher had, before the commencement of the suit, fully paid the sum demanded ; that the jury found accordingly in favor of Gray ; that thereupon, at the same term, the respondents moved that the verdict should be set aside and a new trial granted, on the ground, amongst other things, that subsequently to the trial, Usher had made confession that no such payment had been made ; that Gray opposed the motion, because it appeared that the partnership between Gray and- Usher had been dissolved several years before the trial, and therefore these con Cessions of Usher were not admissible in evidence to affect the rights of Gray; that thereupon the action was continued for argument and advisement until July'term 1830, when the verdict was set aside and a new trial ordered ; that Gray, at the same term filed his exceptions to such decision, and presented the same, at that court, to Ward C. J., before whom the action had been tried, but he refused to allow and sign the same, although finding them conformable to the truth of the case ; and that the action is still pending in that court. The prayer of the petition is for a mandamus commanding the Common Pleas to vacate the rule granting a new trial, and to render judgment upon and according to the verdict, or to cause the exceptions to be signed by the judge who tried the cause.
    
      March 30th.
    
    The St. 182Ó, c. 79, § 5, provides that it shall be lawful for either party thinking himself aggrieved by any opinion, direction or judgment of the Court of Common Pleas in any matter of law, to allege exceptions to the same, which being reduced to writing, &c. and found conformable to the truth of the case. “ shall be allowed and signed by the presiding judge or justice of said court,” &c.
    In § 7, it is provided, that the Court of Common Pleas, in certain cases, shall have power to grant a new trial “ for any cause for which, by the common law, a new trial may now be granted, or when, upon due examination, it shall appear to said court that justice has not been done between the parties.”
    
      II. H. Fuller, for the petitioner,
    was about to argue that the verdict ought not to have been set aside, unless the newly discovered evidence would be admissible upon a new trial, and that the confessions made by Usher after the dissolution of the partnership would not be admissible evidence against Gray; but the Court desired him to consider the question, whethei the decision of the Court of Common Pleas granting a new trial, was subject to the revision of this Court. He then contended, that the petitioner was aggrieved by the decision of the Common Pleas, in a matter of law, and not in a matter subject to their discretion, and that in such case the signing of the exceptions was a ministerial act which the judge was bound to perform, the exceptions being conformable to the truth of the case. As to what is matter of law and what of discretion, he cited, Reynard v. Brecknell, 4 Pick. 302 ; Whitney 
      v. Thayer, 5 Pick. 528 ; Pierce v. Thompson, 6 Pick. 193 ; Sawtell, Petitioner, &c. ibid. 110 ; People v. The Judges of West Chester, 4 Cowen, 73 ; People v. The Judges of Washington, 1 Caines’s R. 511 ; Sikes v. Ransom, 6 Johns. R 279 ; Haight v. Turner, 2 Johns. R. 371 ; Ex parte Coster, 7 Cowen, 523 ; Ex parte Bacon, 6 Cowen, 392 ; Danvers v. Essex Commissioners of Highways, 6 Pick. 20 ; Midberry v. Collins, 9 Johns. R. 345 ; Purple v. Clark, 5 Pick. 206. And to show that a mandamus was the proper remedy to compel the Common Pleas either to sign the exceptions or to render judgment upon the verdict, he cited St. 1782, c. 9, § 2; The People v. Columbia Common Pleas, 1 Wendell, 297, 300 ; Ex parte Caykendoll, 6 Cowen, 53, 54 ; Commonwealth v. Sessions of Norfolk, 5 Mass, R. 435 ; Commonwealth v. Sessions of Middlesex, 9 Mass. R. 388 ; Commonwealth v. Sessions of Hampden, 2 Pick. 414 ; Springfield v. Hampden Commissioners of Highways, 4 Pick. 68 ; Bac. Abr. Mandamus, preamble and letter A.
    
    
      April 2d.
    
      J. G. Rogers, for the respondents,
    insisted that a mandamus would not lie, because the inferior court, in granting a new trial, did not proceed according to the course of the common law, but entirely in pursuance of a statute ; Van Dusen v. Comstock, 3 Mass. R. 187 ; Melvin v. Bridge, ibid. 305 ; Gile v. Moore, 2 Pick. 386 ; Dean v. Dean, ibid. 25 ; Miller v. Miller, ibid. 570 ; — because the exceptions were tendered unseasonably, it being before there was a final judgment in the Common Pleas ; Magill v. Lyman, 6 Connect. R. 59 ; Samuel v. Judin, 6 East, 333 ; Haynes v. Morgan, 3 Mass. R. 208 ; Piper v. Willard, 6 Pick. 461 ; Ely v. Ball, 8 Pick. 352 ; — and because the power of the Common Pleas to grant or refuse the new trial was discretionary. Kimball v. Cady, Kirby, 41 ; Magill v. Lyman, 6 Connect. R. 59.
   Wilde J.

delivered the opinion of the Court. Upon the facts stated in this petition, the Court is of opinion that nothing appears in the proceedings in the court below, which requires or woul 1 justify the interposition of this Court as prayed for. This application is founded on the supposed error of the court below, in admitting proof of the confessions of Usher, which the petitioner’s counsel contend were not competent evidence. But in deciding this case it is not necessaiy to consider the question as to the competency of the evidence, because we think it very clear that the Court of Common Pleas had a discretionary power to grant a new trial, if the justice of the case, in their opinion, required it, and that we ought not to attempt to control or coerce the discretion of that court. That the granting a new trial, like the granting of a continuance, or taking off of a default, rests in the discretion of the court, is fully established by all the authorities, and by the statute of 1820, c. 79, § 7, the Court of Common Pleas are expressly authorized to grant a new trial of any action there tried, “ for any cause for which, by the common law, a new trial may now be granted,” or “ when it shall appear to said court that justice has not been done between the parties.” And from the decision of that court, upon any application for such purpose, no appeal lies; nor can the correctness of the decision, be drawn in question before this Court by exceptions. It seems therefore manifest, that the legislature intended to vest a disci etion in the Court of Common Pleas, in this respect, not subject to any control or revision by this Court. And we cannot interfere by mandamus, as prayed for, without disregarding the spirit and intention of the act. It is true that this Court may and are in duty bound to review the decisions of subordinate tribunals on all proper applications, whenever they exceed their jurisdiction, or assume a power not warranted by law. On this ground the petition for a mandamus was sustained in the case Ex parte Caykendoll, 6 Cowen, 53. In that case the court below had set aside a verdict for the mistake or misconduct of the jury, on the affidavit of some of the jurors; and as this evidence was inadmissible, as being against the policy of the law, it was held that the court below had no right to set aside a verdict for such cause, and a mandamus was granted ordering judgment, to be entered on the verdict. This case, therefore, did not raise any question as to the discretionary power of the court below to grant new trials, and is in no way applicable to the present case, in which the parties were heard in the Court of Common Pleas, upon the merits of the case, on an application which was founded on the discretion of that court, and on the decision of the question, whether, upon the whole circumstances there made to appear, substantial justice had been done. The case at bar more resembles the case Ex parte Bacon fy Lyon-, decided by the same court, (6 Cowen, 392,) in which a mandamus was refused because the court below had heard the parties on the merits of the case, and in their discretion had refused a new trial. “ This,” says the court, is “so much a matter of discretion, that we will not interfere by mandamus. The granting or refusal of an application for a new trial, is governed by no fixed principles. No positive rule of law has been violated by the court below, nor can we fix bounds to their discretion upon this subject.”

The same principle is laid down in the case Ex parte Benson, 7 Cowen, 363. So also, in the case of The People v. The Sessions of Chenango, 2 Caines’s Cas. in Err. 320, Kent J. says “ that the power of awarding new trials on the merits is a power necessarily resting in sound legal discretion. The reasons of the exercise of that discretion, are not stated on the record, and not susceptible of review by this court.”

On these grounds we declined hearing an argument as to the competency of the evidence objected to ; and we think it clear that the rule granting a new trial ought not to be vacated, although it should appear that the evidence would not be admissible on the new trial. If it should be offered and admitted, the petitioners may then regularly bring the question before this Court for revision.

Petition dismissed. 
      
       The Rev. Stat. c. 82, § 19 provide, that the Court of Common Pleas may “ order a new trial for any cause for which, by law, a new trial may and ought to be granted ”
     