
    Jason Stebbins v. Asa H. Field.
    
      New trial — Settlement of exceptions — Costs.
    Act 8 of 1879 allowing the successor of the trial judge to settle a bill of exceptions on the stenographer’s minutes, does not authorize the vacation of an order for new trial made when there was an absolute right to it.
    Where a new trial has been allowed to one who has an absolute right to it, he cannot be compelled to settle a bill of exceptions as for the former trial.
    Costs of hearing were not allowed in full where the court after ordering a case to stand for argument, decided that the right to a new trial had been absolute and that the settlement of a bill of exceptions ought not to have been required.
    Error to the Superior Court of Detroit. ordered the motion to stand over until argument. The case being called, Mr. Ward renewed his motion.
    
      Submitted and decided July 2.
    Assumpsit. This case was tried before Judge Cochrane who died before the bill of exceptions was settled. A new trial was granted by the Superior Court but the order was rescinded after the passage of Act No. 8 of 1879, on the supposition that this rendered it proper to have exceptions settled on the stenographer’s minutes by the acting judge of that court, and the exceptions were thus settled. At the opening of this term the plaintiff in error moved to have the exceptions stricken out and a new trial granted under the decision in Campau v. Judge of Superior Court, 40 Mich., 630. The court
    
      
      Ward é Palmer for plaintiff in error.
    
      Wisner & Speed for defendant in error.
   Per Curiam.

We are satisfied we ought to have granted this motion when it was first made. We held it over on the idea that an important question might be involved concerning the validity and construction of the statute. But we cannot distinguish this case from those decided before. The new trial was granted when the party had an absolute right to it, which it was not competent to deprive him of against his will. We therefore are compelled to order .that a new trial be granted on the record as it stands without argument upon the special errors in the bill of exceptions, which the party was not compellable to have settled after the new trial had been once allowed him.

The judgment must be reversed and a new trial granted, but with $20 costs instead of full costs of hearing.  