
    * Joseph Mixer versus David Dalrymple.
    A motion for a new trial, upon exceptions, for the misdirection of the judge, pui suant to the statute, is within the rule established at March term, 1806, in Suffolk.
    
    At the trial of this action, which was assumpsit for money had and received, before Sewall, J., in December last, the defendant offered certain evidence, which the judge. decided should not be given to the jury. To this decision the defendant alleged his exceptions, pursuant to the statute, and they were allowed and signed by the judge. The defendant was entitled to a review of the action under the  statute “ granting the privilege of review in civil actions; ” notwithstanding which, Bliss, of counsel for the defendant, moved for a new trial, for the misdirection of the judge, and contended that this case could not be considered as within the general rule  adopted by the Court at the last term, in Suffolk, which he thought was intended to apply to motions for a new trial at the common law, and not to exceptions filed and allowed by the judge, in support of which he supposed the statute had given the party a right to be heard, and therefore that the rule would not be construed to deprive him of that right.
    
      
       February 26, 1737.
    
    
      
       Vide ante, page 72.
    
   But the Court

refused to sustain the motion, and observed that it was not within the true intent of the statute, providing for the filing jtnd allowing of these exceptions, that the Court should spend time in hearing and determining motions grounded on these exceptions, and in the mean time to delay judgment, when the party filing the exceptions had a right, by a writ of review, to have a new trial, if the motion should be refused; and that the design of the legisla turc was to provide a remedy in a case where none existed, and not in a case where the party aggrieved had a remedy in the ordinary course of law.

Ashman for the defendant. 
      
      
         Cogswell vs. Brown, 1 Mass. Rep. 237.— Byrnes vs. Piper Al. 5 Mass. Rep. 363 — Dunham & Al. vs. Baxter, 4 Mass. Rep. 79.
     