We might dispose of this question by merely observing, that the County Court granted the prayer of the petitioner, and the original action is now pending before the County Court, and ought not to have been brought before this Court, till wholly disposed of there; when all the exceptions, taken to the decisions of the County Court, might come up together. But we are disposed to decide the question of jurisdiction, which has been presented and argued.
There is a material difference between trials and defaults ; and there are appropriate terms, known Ein law, applicable to each. A motion or petition for a new trial technically appertains to a case, that has been tried by the jury, or at least a trial of the facts. Perhaps the issue being joined to, and tried by the Court, under our statute, would be as if tried b.y the jury, in this respect. A motion or petition to set aside a judgement, or set aside a default is applicable to the many cases, that happen, through fraud, accident, or mistake.
Before the Statute of 1825, a statute provided for the *59granting of new trials bv the same Court, that rendered . , , . . . judgement, either on motion the same term, or on petition at a subsequent term. Those provisions were applied in-' discriminately to judgements rendered on trial, or by default.
íl. E. Hnbbell, for petitionee. Shelden, Smalley & Jldams, for petitioner.In 1825, when all jury trials and issues of fact were in future confined to the County Courts, the Statute cited, made provision, that the party wishing for a new trial should not be confined to a hearing before that Court, which had once decided t against him; but might and must call the opposite party before a different tribunal. — ■ The wording of the 17th section cited., shows this. All petitions for new trials in causes tried before any County Court, shall be presented to the Supreme Court &,c,, in the same County where such action shall have been tried. The language of this statute and the occasion of its passing, show it to be not intended for those cases, where judgement may have [been rendered by a County Court by default, said Court then knowing nothing about those facts, which are afterwards urged as a reason for setting aside the judgement.
Cases have been carried before the Supreme Court like this, and heard upon the merits, and the judgements set aside, and the causes sent to the County Court for a trial upon the merits, and the attention of this Court never called to this question of jurisdiction. But we are now fully satisfied, that the jurisdiction of such petitions belongs to the County Courts, and their judgment upon this motion to dismiss, is affirmed.