At the first reading of sections 3668 and 3670 of the Code, there arises, almost irresistibly, the impression that it was the intent of the law makers to authorize a motion for new trial, “ under extraordinary circumstances,” to be hiade in vacation. Section 3668, after providing for ordinary cases, and in terms requiring the motion in such cases to be made at the term at which the case was tried, expressly excepts “ extraordinary cases ” from this rule. Section 3670 says: “ In case a motion for a new trial is made after the adjournment of the Court,” some good reason must be shown why it was not made “ during the term.”
As I have said, an ordinary reader would, from the words “ after the adjournment of the Court,” and “ during the term,”' understand, “ during vacation.” It is, however, argued that, by the practice at common law, and by our own practice previous to the adoption of the Code, motions for new trial were always made in term time, and that, as these sections of the Code do not expressly say the motion may be made in vacation, and as it is possible to give the language a meaning even so restricted, that it is proper to do so. There is some plausibility in this view of the subject; but it seems to me the language of the Code does not get its full meaning if we only draw from it the right to move for a new trial at some term subsequent to the trial term. The words in 3670 are not thus restricted; the words ai-e, “ after the adjournment of the *374Court;” it does not add the words, “ at which the case was tried.” So, too, it says some reason must be given why the motion was'not made “during the term ;” it does not add, “ at which the case was tried.” Were these two sections one section, the words “ after the adjournment of the Court ” and “ during the term ” might, perhaps, be fairly understood as mere qualifications of the words, “ all applications for a new trial must be made during the term at which the case was tried.” But they are different sections; they do not even follow each other, and the intervening section treats of a different subject, to-wit: provides what Judge shall^ decide upon motions for new trial. Nor is there any special propriety in requiring motions for new trial, in extraordinary cases, to be moved for only in term time. There is propriety in requiring the motion, as a general rule, to be made at the term at which the case is tried. ” At common law, it had to be done before there was any action taken by the Court on the verdict — before judgment, and before the verdict complained of ceased to be the last action in the case. It is, besides, important that the motion shall be made whilst the facts are fresh, so that there shall be no misunderstanding as to the evidence or as to the rulings of the Court. It is important, toe, for all parties to know when the dispute between them is settled by a final judgment. For all these reasons, there is special' propriety that the motion should be made, “ not in term time,” especially, but during the term at which the case was tried.
But none of these reasons apply to a motion for extraordinary causes. The term has passed; the judgment has been entered; the gaining party — nay, both parties — suppose the case over. But new events have taken place. Some circumstances exist which render this rule unjust, and these circumstances pi’esent so strong a ease as to justify non-attention to the strong considerations which make the general rule of requiring the motion to be made at the term at which the cause was tried. Judge Lumpkin says, the motion in extraordinary cases is instead of a bill in equity. What reason is there why this motion should not be made in vacation. It is but *375a very poor substitute for a bill in equity, if it can only be made in term time. Even in civil cases, unless the plaintiff is stopped by injunction, or by supersedeas, the motion would be worth but little, as the property of the movant would be sold before the term came on. And in criminal cases, by far the most important, the accused would generally be, if the penalty was death, hanged before the motion could be made. The statute provides that all motions for new trial may be heard in vacation. In ordinary cases, they must be made during the term at which the case was tried, But if this term passes, and circumstances exist which make the motion proper, it seems to me there is just as much propriety in allowing the motion to be made as to be heard in vacation. In civil cases mo great harm can come from requiring the motion to be made in term time only. The party complaining has his old remedy — a bill in equity — -if there be any special reasons requiring speedy action, though, as we have seen, one of the objects of this section was to prevent the necessity of equitable interference.
But in criminal cases, the party complaining cannot go into equity, however strong may be the case he presents; however clear may be his right to a new trial, he must wait until the term; he must, perhaps, go on to submit to an ignominious punishment until the time fixed by law for the meeting of the Court, or if the penalty be death, he must lose his right altogether.
The only reply that I have heard to this is, that the Governor will interfere if injustice is about to be done, But the judiciary ought not to need Executive interference, in order to exercise its own granted functions. If there were no power to grant a new trial at all, the Executive functions might well be applied for. But a grant of a new trial is essentially a judicial act, and it ought not to need the Executive power to be complete. The law specifically authorizes motions to be made after the term has passed, and in my judgment it follows that it may be made in vacation when the circumstances show it to be necessary. We think, too, that the sections of the Code *376referred to give this power to the Judge, and that section 239 of the Code does not, therefore, stand in the way. We do not go into the merits of the ease, further than that we see enough in the record to show that this motion is made in good faith.
As we recognize that this motion was made at a legal time, and as the Judge has heard it, and a bill of exceptions has been filed, we are of the opinion that a 'supersedeas ought to be granted. By the old Act, a supersedeas in a criminal case was at the • discretion of the Judge, but section 4203 of the Revised Code changes this rule, and it is the duty of the Judge to grant the supersedeas if he sign the bill of exceptions. In this construction of section 4203, we all agree. The supersedeas is a part of the duty of the Judge, in his signing the bill of exceptions. Such signing is not complete without it, and a mandamus will, therefore, lie to compel it.
As we have said, we express no opinion on the merits of this case. We simply do not think the motion a sham; it presents questions that ought to be considered. Were it a sham, we might refuse to exercise our power to grant a mandamus, as this Court has done in similar cases.
Writ of mandamus ordered to issue.
Montgomery, Judge, concurred, but furnished no opinion.