By sec. 3661, of the Code, the power to correct errors and grant new trials, in any cause depending in them, is given to the Superior Court, in such manner and under such rules and regulations as they may establish, according so law and the usages and customs of Courts. The Legislature evidently contemplated that the Judges of the Superior Courts, in convention, should prescribe a body of rules of practice, so as to cause uniformity in the Courts.
It so happened that no rule, whatever, as to whether a motion for new trial, may be made after a verdict at common law, or whether it could be made only after verdict on appeal trial, was prescribed. There being no law, no decision of this Court, no rule of practice prescribed by the convention of Judges of the Superior Court, regulating this matter, it would seem that, in a question thus arising, a discretion does belong to the Court, to dispose of it in conformity to general principles.
It seems that the plaintiff in error moved for a new trial-on several grounds. We are not at liberty, adhering to the practice of this Court, to consider any of them, as they were not pronounced upon by the Judge, before whom the motion was made.
The sole question here, is whether or not a Judge of the Superior Court may not grant a new trial after a verdict at common law ?
We have not been able, in the research made, to find anything which denies such power. Whilst it may be conceded that, under our recent system, allowing of appeals, as a general rule, new trials should not be granted after a verdict at common law, we are persuaded that cases of peculiar character, involving hardship, and productive of great injustice, could arise, which would authorize a change of practice. There can be no question, it is apprehended that the power *675to grant new trials, should be exercised upon applications, setting forth, fully, such considerations as would be addressed to a Court of equity, and supported by affidavit. A party should never be forced to file a bill, under our system, to obtain a new trial. I take it that whenever a Court of equity has power to grant a new trial, such new trial can be granted on the common law side of the Superior Court, upon precisely the same principles.
We are aware that it is provided by the Code that applications for new trials, shall'be made at the term at which a cause has been tried. This is, unquestionably, the general rule, and a sound one; but we do not understand it to exclude, when the term shall have passed, an application founded upon the discovery of new and important testimony, without any laches whatever, in applicant, in not having procured it for the trial, or other cases that may fall within the class called extraordinary, and are, therefore, exceptional.
The case between the same parties, decided at December Term, 1867, exhibited the fact that the plaintiff in error had in good faith attempted to appeal from the verdict at common law, but the appeal so entered was dismissed on motion of defendant, because the security on the appeal happened to be the same person who was security on the bond to dissolve the garnishment, and judgment had been entered up against him as such security. This Court sustained, on technical grounds, the decision dismissing the appeal; but whilst it did so, we must not shut our eyes to the fact that when the appeal.was made the Clerk of the Court, cognizant, as he necessarily must have been, that Barker was the security on the bond given in the garnishment proceeding, and that when plaintiffs below obtained their verdict, they had entered up judgment against plaintiff in error, as also against Barker, he ought to have refused to receive Barker as security on the appeal. The competency and sufficiency of security offered are incidental questions for his decision when the appeal is applied for, and had he refused Barker, the plaintiff in error would most probably have procured other and competent security, and his appeal would have been heard. The omis*676sion of the Clerk to reject Barker as security, as he should have done, misled plaintiff in error, prevented his giving additional security, as the law required, or moving before the term had closed for a new trial. These circumstances, accidental in themselves, and where it is so palpable that the plaintiff in error did in good faith seek an appeal, authorized the Judge below to hear the application for new trial, and if, upon any of the grounds contained in the motion, the applicant was entitled to a rehearing, it should have been granted.
Judgment reversed.