Doe against Roe

Doe against Roe. UTICA, Aug. 1826. This was a case made on trial of a feigned issue of devi-savit vel non, directed by the judge of the 6th circuit, sitting in equity. The judge of that circuit tried the cause at law. The cause being on the calendar of the present term for argument upon the case, J. Platt moved, on the authority of Doe v. Roe, (1 Cow-en, 216,) to strike it off. J. A. Spencer said that case was distinguishable from this; not only as being an issue on a bill filed for a divorce, but also as arising under the old organization of the judiciary; when the judge who held the circuit had no chancery powers. Here the very judge who orders the issue, tries the cause at the circuit; and reviews it on a motion for a new trial. The supreme court will not, in general, hear a motion for a new trial, on a case made upon the trial of a feigned issue ordered by a circuit court of equity. The proper course is, to move in the court which ordered the issue. [MAJORITY — Curia.] Curia. We do not mean to say that we have not power to hear the case ; but we think the more proper course is to move in the court of equity. Motion granted.