
    FORMAN against MURPHY.
    Courts of small causes may not set aside verdicts, and award new trials. Mandamus, but not peremptory, to render judgment on verdict delivered.
    
      I. H. Williamson
    
    moved for a mandamus to Justice M’Chesney, of the county of Middlesex, commanding him to render judgment in a cause which had been tried before him. The cause had been tried before him by a jury, and the jury rendered a verdict in favor of one of the parties, and the justice set aside the verdict of the jury, on the ground that the jury had rendered the verdict against evidence. Mr. Williamson contended, that a justice could not set aside a verdict on the merits; that this was a power only exercised by superior courts, that a court for the trial of small causes was, from its nature, an inferior court; he cited 1 Bur. 568, 571; 1 Salk. 202; 2 Salk. 650. He also stated that this question had been repeatedly decided in this court, against the power now exercised by the justice.
    
      Scott, contra.
    He had a much higher authority to cite than the books cited by Mr. Williamson; that was the statutes of the State, which expressly declared, that courts for the trial of small causes were courts [*] of record, and vested them with all such powers as is usual in courts of record of this State, Pat. 3IS ; that at the time of passing the act, all courts of record did of right exercise the authority of granting new trials on the merits of the ease.
    
      Williamson, in reply.
    The granting a new trial was not incident to a court of record; but was exercised by superior courts, and came in the place of attaints; that it had been settled in the State of New York, that even the Courts of Common Pleas could not grant new trials on the merits, they being inferior courts.
   Kirkpatrick, C. J.

I came on the bench about the time that the present law, constituting courts for the trial of small causes, passed; soon after which, this question was brought before the court; and although I had strong doubts upon the subject, and inclined the other way, yet my brethren, three in number, the court [748] then being composed of four judges, were all of them clearly against the practice, and prohibited it by mandamus; and this has been the understanding on the subject ever since. I do not feel inclined to overrule the authority of a settled course of adjudications; and, therefore, am of opinion that the mandamus must be allowed.

Rosserl, J.

Agreed to this opinion, on the ground of former decisions of this court.

Pennington, J.

I have never entertained a doubt on the subject. On a full investigation of the question, I am clearly of opinion, that the exercise of this authority by the justice, is against law; it can only be entrusted with safety to intelligent courts, acting under known established rules, and governed by a settled course of adjudications. It is also against public policy. To invest three hundred courts in the State, with the power of granting new trials whenever the justice is dissatisfied with the verdict, would lead to endless litigation; be attended with confusion [*] and uncertainty, often with oppression and injustice.

By the Cottut.

Take your rule for a mandamus, but not peremptory; that the justice may have an opportunity to show cause against it, if he desires it.

Approved in Terhune v. Barcalow, 6 Halst. 38. Cited in Cortleyou v. Ten Eyck, 2 Zab. 45.  