¶1If the cause be now dismissed from this Court, a procedendo must issue to enforce the execution of the judgment below, because the obtaining acertiorari was for the purpose of having it determined by the Court here whether it was proper to grant a new trial, and the judgment below remains in force until an argument be had here and the new trial granted; and if the cause should be dismissed before the new trial is granted, the obstacle to the execution of judgment being removed, it remains to be executed; and the Court here ought to certify the court below of this proceeding, which is done by a procedendo.
¶2The counsel for the defendant then moved that the cause should be set aside for trial at the next term. *222