At June Term, 1860, of the court of pleas and quarter sessions of Pasquotank County, the plaintiff issued his writ against the defendant, *Page 124 as administrator of one Susan Jennings, and service of the same was accepted by the defendant; at the same term the pleas of the defendant were entered, and by consent the cause was tried. A jury was impaneled, witnesses examined by plaintiff, and the cause submitted to the jury, who returned a verdict in favor of plaintiff for $228, and that there were debts of higher dignity. Upon which verdict a judgment"quando" was rendered by the court. Some days after this verdict and judgment, but during the term of the court, James Jones and Amanda, his wife, parties not of record, came into court by their attorney and asked the court to set aside the verdict and judgment and direct a new trial; this application was resisted by the plaintiff, but the court ordered the verdict and judgment to be set aside and a new trial to (162) be had, from which order the plaintiff appealed.
Two questions were submitted to his Honor:
First. Had the county court the power to set aside the verdict and judgment and grant a new trial?
Secondly. Had the county court the power upon the application of parties not of record to set aside the verdict and judgment and direct a new trial?
His Honor being of opinion against the plaintiff upon both of the questions, ordered the appeal to be dismissed, and the plaintiff appealed. This Court concurs with his Honor on both of the questions presented by the case. The power of granting "new trials" has been exercised by the courts of pleas and quarter sessions in this State as far back as the recollection of any member of this Court reaches. We have never heard of its being drawn in question before. This long user, without objection on the part of the profession and without interference on the part of the Legislature, creates so strong a presumption in favor of the existence of the power that we should not feel at liberty to deny it, except on the most convincing proof. The suggestion that the power is liable to abuse, because the members of which the court is composed may be continually shifting, addresses itself to the legislative department, and would, we have no doubt, have been attended to had any serious practical evil resulted from it.
Independently of the argument drawn from long user, we are of opinion that the county court has the power. It is true, an inferior court has not the power to grant a new trial, and as soon as it acts becomes functusofficio in respect to the case decided. For instance, a single justice of the peace cannot grant a new trial, except under the *Page 125 circumstances where the power is specially conferred by statute. (163) But the county court is not an inferior court, within the meaning of this rule. It is a court of record, and has general original jurisdiction "to hear, try, and determine all causes of a civil nature at the common law within their respective counties, where the original jurisdiction is not, by statute, confined to one or more magistrates out of court, or to the Supreme or Superior courts." Rev. Code, chap. 31, sec. 5.
As the court has the power, it follows that its discretion, in the exercise of it, cannot be reviewed. Whether the discretion be exercisedexmero motu or at the instance of a stranger to the proceedings is a matter which does not at all affect the validity of its action, and cannot be inquired into. In this particular instance, however, we will say, from what appears on the record, the discretion was very properly exercised in setting aside a judgment which had been confessed (for it amounted to that in fact) at the first term by one who had no personal interest to contest the claim, as a want of assets was admitted.
PER CURIAM. Affirmed.