
    Robert Cannon v. A. W. Beemer, et al.
    
    The exercise of a discretionary ¡power, in the superior court, cannot be examined upon an appeal.
    This was an action of Debt, tried on the last Spring Circuit at Wake, where the plaintiff obtained a verdict, which was set aside, upon the payment of the costs of the term. Directly after the rule was made absolute, one of the defendants applied to the clerk, and paid him his costs ; during the term, several witnesses, who were examined on the trial, proved and filed their tickets— The defendant who paid the cost, made no enquiry of the clerk, as to the costs of the witnesses-; neither did the clerk give him any information relative to them,— No notice of the tickets being filed was given, to any of the defendants ; and in no way, except by inference, did it appear that they knew the tickets would be filed.— Upon these facts, the plaintiff on the last circuit, moved for judgment upon the verdict, .insisting that the condition upon which the new tidal h .(! been, granted, had not been performed. The defendant resisted the motion, and paid the costs of the witnesses into the office.
    His Honor, Judge Norwood, directed judgment to b.e. entered upon the verdict, and the defendants appealed.
    
      Manly for the defendant.
    
      Badger and fV. H. Haywood, for-the plaintiff.;
   DaNiei, Judge.

We do not agree with the plaintiff’s counsel that the terms of the rule import that the costs should be paid at that time. Upon the second point, we think that the questions.,, whether the terms of the order had been complied with, or whether a new trial should be granted, were addressed solely to the discretion of the judge below. We are of opinion that he was too rigid with the defendant,' yet as he exercised a. discretionary power, we cannot disturb his judgment.

Ruffin, Judge.

The granting a new trial, and the terms of it, were altogether in the discretion of the Su* perior Court, where tlie rule was made $ and so also was the enlarging the rule, or the refusal to enlarge it, at the subsequent term. We should indeed in the case stated in the record, if that he all, have been disposed to enlarge the rule in this case ; hut I am not as capable of forming as correct an opinion, as the judge who presided and knew the value of the controversy, and all other circumstances ; and as it is a matter of discretion, his must determine the question and not ours — the judgment must be affirmed.

Per Curiam. — Judgment aeeirmed.  