#### PALIN SCAFF v. M. W. BUFKIN, Adm'r.

Courts of Pleas and Quarter Sessions have power to set aside a verdict, and"' judgment, and to-order, a, new trial during the, term.!.

The power of the Courts .of Pleas and Quarter Sessions,!©, set-aside awerdiot ' and order a new trial, .is entirely discretionary, and t-b'e propriety* of its-exercise cannot be enquired into upon appeal.

This.was an appeal from an interlocutory order of the-County Court of. Basquotanl-c, and was heard before Howard, , J., at Eall Term, 1860, of the Superior Court of. said County,, upon the following.case agreed

At June, Term, I860, of the Court of Pleas-and-Quarter • Sessions of Pasquotank, county, the plaintiff issued his writ against the defendant, 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 entea'ed,..and by-consent the canse-was tried. A jury was emp.annelled, witnesses examined by plaintiff, and the cause submitted-to the jury, who returned a verdict in favor of plaintiff; for $228,00, and finding that there, were- debts of higher dignity. Upon wlficli verdict, a judgment “ guando” was rendered by the Court. Some days after this verdict and ijudgment, but du-iring 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, bnt the Court ordered the verdict and judgment to be set *162aside, and a new trial to be had, from which order the plaintiff appealed.

Two questions were submitted to his Honor:

1st. Had the County Court the power to set aside the verdict and judgment, and grant a new trial.

2ndly. 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.

Johnson, for plaintiff.

Hinton, for defendant.

Pearson, C. J.

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 bach as the recollection of either 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 i/nferior oowrt has not the power to grant a new trial, and as soon as it acts, becomes fundus offieio in respect t© the case decided. Eor instance, a single justice of the peace cannot grant a new trial, except under the circumstances *163where the power is specially conferred by statute. 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, ch. 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 exercised ex mero mofa, 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 enquired 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 6ne who had no personal interest to contest the claim, as a want of assets was admitted. There is no error.

Per Curiam,

Judgment affirmed.