Hicks vs. Chamberlain, 12 Wend. 254

By the Court, Sava-ge, Ch. J. This cause requires an examination of the provisions of the “ act relating to the supreme and circuit courts,” passed April 13, 1832. The policy of the act manifestly was to prevent causes being carried directly from the circuit to the supreme court, without first giving to the circuit judge time and opportunity deliberately to examine and decide the questions raised in the cause. It may often happen that when a question is presented in the hurry and bustle of a nisiprius court, the judge may make a decision, which, upon examination and reflection he would pronounce incorrect.

It was, therefore, to enable him to review his own decisions, and thereby prevent delay and expense to the parties, that the act in question was passed. With this key to the statute, let us look into its provisions. The first

section enacts that “ where, in any personal action, any bill of' exceptions shall be taken, demurrer to evidence put in, case made, or notice of motion given for new trial on newly discovered evidence, and the proceedings shall not be stayed, the party in whose favor the verdict is rendered, may perfect his judgment and issue execution ; but it shall nevertheless be lawful for the other party to proceed to obtain a hearing before the supreme court upon the matters in question, in thp manner hereinafter mentioned ; and in case their judgment sh^ll be in his favor, they may set aside the proceedings with the! verdict, and order restitution, &c. The sole object of this

section is to authorize the prevailing party to enter'his judgment and to issue execution, where an order to stay proceedings has not been obtained ; and notwithstanding such entry1 of judgment to authorize the opposite party to proceed in his motion for a new trial, making provision for restitution in case a new trial be granted. The second

section enacts that “ the cases mentioned in the first

section in this act, shall in the first instance be heard and decided by the circuit judge,’’ &c. What cases are to be heard in thfe first instance by the circuit judge 1 As 1 read the statute, all bills of exceptions, demurrers to evidence, cases made, and motions for new trials on newly discovered evidence. The counsel for the plaintiff contends that these cases are not to go before the circuit judge unless proceedings have not been stayed.

The stay of proceedings has no influence- upon the course to be pursued, as to whether the bill of exceptions, &c. shall or shall not in the first instance be heard before the circuit judge ; its office is to prevent judgment being entered upon the verdict qr nonsuit, until the question raised in the cause can be decided.

The cases enumerated in the statute must, therefore, be heard and decided by the circuit judge, before they can be placed on the calendar of this court, unless the circuit judge, according to the provisions of the act of 1833, shlall have directed that the-bill of exceptions, or the like, shall be carried immediately to-this court,- without being argued before him, Laws of 1833,. page 395, § 4.

This cause not having been heard and decided by the circuit judge previous to its being placed on the ca lendar here, and no order having been made by the circuit judge that the bill of exceptions should be carried immediately here, the judgment of the plaintiff was irregular, and must be set aside with costs.