Kimball v. Cady

1 Kirby 41

Opinion

By the whole Court.

There are two grounds for affirming the decision of the Court of Common Pleas:—

1. If the petition was for a new trial, it was matter of discretion with the court to which it was preferred, to grant or negative, and error cannot be predicated upon such decision.

2. The petition cannot be sustained on the statute for the equitable decision of tenders in certain cases, as there had been a judgment at law: Por the provision of the statute extends noi te cases= adjudged and closed at law, Wt to cases open and prosecuting at law, and is expressly limited to actions pending by original writ, appeal, or writ of error. An extension of the statute retrospectively to overthrow judgments that have been rendered and acquiesced in at law, would be very inconvenient, and the words of the act will not admit of such a construction.