(concurring). The opinion oí Mr. Justice Long sufficiently states the facts in the case; and the only question to which I shall advert is that of whether the circuit judge has power, under the statute relating to these proceedings, to set aside the award of the jury, and direct a new trial before another jury, to be impaneled.
It would be unseemly and unwarranted for the Court to overrule its former opinion in any case where such result is brought about by a difference in view between Justices, one of whom succeeds the other (McGutcheon v. Homer, 43 Mich. 483); but, inasmuch as a majority of the Court as constituted when the opinion in Backus v. Gartner was rendered concur in overruling that decision, I feel free to state that, in my opinion, the statute is sufficiently broad to confer the power assumed by the circuit judge in this case.
The statute imposing the duty and conferring power upon the circuit judge in such proceedings provides that he “shall confirm the same on the next or any subsequent day when in session, unless for good cause shown by either party;” and, further, that “ said court, as to the confirmation of such report, shall have the powers usual in other cases.” The words “powers usual in other eases” were so construed in Backus v. Gartner as to exclude the power to award a new venire, and it was held by the learned Chief Justice that the intent was to convey the same power as was conferred on the judge in other cases in which the confirmation of reports, made to such court by some body or persons authorized by law to make them, was committed, to his jurisdiction, and the learned Justice cites as an analogous proceeding the power conferred to confirm the report of referees, and concludes that the only power under that statute would *58be to confirm the report of the referees, or send the same back to the same referees. Section 7379, How. Stat., seems to have been overlooked, which provides that—
“ The circuit judge may, by an order under his hand, filed with the clerk, discharge any referee on cause shown by affidavit, and may in. like manner fill any vacancy that may occur in their number, or may direct the reference to proceed and be concluded without filling any such vacancy.”
It cannot be doubted that under this section the circuit judge might, upon a showing that the referees were prejudiced or biased, discharge one or 'all of such referees, and refer the same to new referees to be appointed by him.
Hnder article 6, § 8, of the Constitution, the circuit courts are vested with full power in civil and criminal proceedings. They are the courts of the highest original jurisdiction in the State, and are beyond the reach of the legislative power. Heath v. Circuit Judge, 37 Mich. 372; Allen v. Circuit Judge, Id. 474. The -power-to control the verdicts of juries and set aside the same for bias is among the most essential powers vested in a nisi prius court, and to justify a construction of a statute which excludes this power the language should be clear and unmistakable. In my judgment, such an intent, is not evidenced by the act in question. The provision that the circuit judge shall have the powers usual in other cases, fairly construed, means the powers usual in other cases within the jurisdiction of such court. This; includes the power to see that justice shall not miscarry by reason of the prejudice or misconduct of the jury.
A law of Tennessee provides that not more than two-new trials shall be granted to the same party in any action at law, or on the trial by jury of an issue of fact *59in equity. In Trott v. West, 10 Yerg. 499, the supreme court of Tennessee held that this act did not intend to prevent the court granting new trials for error in the charge of the court to the jury, for error in the admission or rejection of testimony, for misconduct of the jury, and the like. See, also, Turner v. Ross, 1 Humph. 10; Railroad Co. v. Hackney, 1 Head, 170.
I concur in the conclusion reached by Mr. Justice Long.