CHITTENDEN, term, otherwise it could not be allowed. Wright v. Sharp, January, 1842. 1 Salk. 228. See Pocklington v. Hatton, 8 Mod. 221. When bills of exceptions, as the foundation of writs of error, come into general use in this state, the convenience of the court and the bar induced the practice of settling them during the vacation, and such, to some extent, was the practice at common law, although confessedly irregular. 1 Bos. Puller, 32, 33. It is now required, by statute, that this should be done within thirty days after the rising of the court. And, unless so done, the duty of the clerk is specifically pointed out. He is to erase the entry of exceptions and issue execution. We could not now suffer exceptions to be filed at a later period than that required by the statute, without thereby virtually repealing it. The case is not properly before this court, and must be treated as a mis-entry. From the case of Gardner v. Baillie, 1 B. & P. 32, it would seem that the bill of exceptions is never considered a part of the record until it is attached to it in the court of error. Here the court of error have no discretion upon that point. The bill of exceptions is not now brought into the court of error, as formerly, by the judge allowing it, but attached to the record below, and comes up as part of the record.

IRA SHATTUCK v. WILLIAM OAKES.

THE same point was raised in this as in the last case, and determined in the same manner. In the course of the circuit, the same question was several times brought before the court, and received a similar determination.

TREASURER OF THE STATE V. ARAD MERRILL and JACOB
MAECK.

In actions in favor of the treasurer of the state, on recognizances, either party may bring the case into this court on exceptions to the decision of the county court.

Under the revised statutes, it is sufficient if the bill of exceptions is signed by the chief judge of the county court.

The party demurring in the county court will open the argument in this court, although the other party brought up the case on exceptions.

SCIRE FACIAS, on a recognizance.

This case was determined in the county court (on demurrer to the declaration) in favor of the defendants. The plaintiff took his bill of exceptions, and brought the case into this court, for revision. A question was now made whether the treasurer of the state could bring this case (which is debt on recognizance in a criminal prosecution,) into this court on exceptions, inasmuch as the statute provides that No writ of error shall be allowed in a criminal cause, prosecuted by indictment or information,' and no provision is made for exceptions on the part of the state in any criminal cause.

BY THE COURT. These actions have been treated like any other civil action, so far as exceptions are concerned, and either party, against whom any question was decided, has always been permitted to present his bill for allowance, and to bring the case into this court.

Another question was made, whether it was sufficient that the bill of exceptions was signed only by the chief judge of the county court.

BY THE COURT.-The statute, chap. xxv, § 37, expressly provides that exceptions to the opinion of the county court, on any question of law which may arise on the trial of any civil cause, shall be signed by the presiding judge. Having determined that this is to be treated like any other civil cause, in regard to exceptions, it follows that there is no necessity that the bill of exceptions should be signed by any more than the presiding judge.

Another question was made in regard to the point of precedence in the argument.

CHITTENDEN,
January,

1842.

CHITTENDEN, January, 1842.

BY THE COURT. The general practice in this court, in regard to this subject, is for the excepting party to open the argument. But as this court is required to render such a judgment, in all cases brought here upon exceptions from the county court, as that court should have rendered, and when the question is determined in the court below upon the pleadings, it would always be convenient to take up the case in this court the same as it was taken up in the court below. We are, therefore, inclined to establish that rule, in regard to this class of cases. The party demurring in the court below will open the argument in this court.

GRAND ISLE COUNTY.

JANUARY TERM, 1842.

MINKLER V. THE ESTATE OF MINKLER.

Where a case comes to this court on exceptions to the decision of the county court of questions of law, this court cannot entertain a motion for a new trial on the ground of new-discovered evidence.

THIS case came into this court on exceptions to the decision of the county court of questions of law arising upon the trial of an issue of fact in that suit without the intervention of a jury. The party, taking exceptions in the court below, now files his motion in this court for a new trial, on the ground of having discovered new and material evidence since the trial of the cause.

BY THE COURT.-We cannot entertain that motion. In hearing this case we sit merely as a court of error, to revise the decision of the county court upon such questions of law as are reserved and sent here for revision. It is true that we

559

January, 1842.

have power to grant new trials in causes tried in the county GRAND ISLE, court, but only upon petition. Motions for new trials are addressed always to the discretion of the court which tried the case, and can only be entertained while the cause is pending in that court. Such is the only reasonable construction which could be put upon the first section of the thirty-third chapter of the Revised Statutes.

JOSEPH DURKEE V. PAUL MARSHALL.

In petitions for new trials of actions tried in the county court, it is not necessary that the petitioner should give security for costs to the adverse party, on issuing the citation, as is required on the issuing of writs of

summons.

On a petition for a new trial, this court will not proceed to the hearing upon the merits until furnished with a properly authenticated copy of the minutes of the judge who tried the case in the county court, or evidence showing that such copy has been applied for and could not be obtained, in which case, only, will the court dispense with such copy and admit the affidavits of the attorneys, as to what passed at the trial.

THIS was a petition for a new trial in a cause tried in the county court. The petitionee pleaded in abatement the want of a recognizance for costs entered by the petitioner at the time of issuing the citation.

BY THE COURT.-There is no statute requiring such recognizance to be entered; and no such practice has ever obtained. The tenth section of the thirty-third chapter of the Revised Statutes has reference only to that class of petitions named in the ninth section. We cannot consider the citation in this case a writ of summons within the terms of the fifth section of the twenty-eighth chapter of the Revised Statutes. The plea in abatement, therefore, must be overruled.

The court held also in this case, that they could not proceed to the hearing of the case upon its merits, unless furnished with a properly authenticated copy of the minutes of the judge who tried the case in the county court, or evidence showing that such copy had been applied for and could not be obtained, in which case only would the court dispense with the copy of the minutes, and take the affidavit of the attorneys as to what passed at the trial.

ADDISON, January, 1842.

ADDISON COUNTY.

JANUARY TERM, 1842.

CHARLES & RILEY ADAMS v. SOLOMON HOWARD.

When a judgment has been rendered against a party, in the county court, by default, this court cannot, on petition, grant a trial in the action.

THIS was a petition for a trial or hearing in a cause where judgment had been rendered against the petitioner in the county court by default.

BY THE COURT.-This court would have no jurisdiction to grant new trials in any case tried in the county court, if it were not conferred by statute, as, at common law, all applications for new trials, or for a trial in cases where judgment had been rendered by default, must have been made to the court wherein the cause had been determined. By statute, this court is empowered to "grant a new trial in any cause determined by the county court," &c. This provision is much in the same terms as the statute in force before the late revision. Under that statute it was considered that the county court had exclusive cognizance of cases like the present. Scott v. Stewart, 5 Vt. R. 57. It was there considered by this court, that the term "new trial," as used in the statute, was technical, and was predicable only of such cases as had been tried on their merits. The application in this case is for a trial, (not a new trial,) and can only be entertained by the county court. The statute giving power to the supreme court to grant "new trials" obviously does not extend to a case like the present, where the cause had never been tried.

Petition dismissed with costs.