¶2although they expressed themselves strongly against the practice of a County Court’s setting aside their judgment rendered at a preceding term, were of opinion, that they could not with propriety go into the examination, unless the whole record of the cause below had been brought up, and a jury impannelled under their direction to try the issue de novo.
¶3That the question of costs did not simply depend upon the motives of the prosecutor, but upon the guilt or innocence of the defendant; which ought first to be duly ascertained. That if the prosecutor had probable cause, though his motives were of the worst kind, he ought not to pay the costs; and it is possible that, upon a trial of the whole case, he might have directed proofs to that point, which may now be excluded, from the nature of the enquiry. That to determine the question upon this appeal, would be to give judgment upon the incident of a cause, which properly belongs to that jurisdiction which has cognizance of the principal subject matter.