
    Goldsby v. Robertson.
    The refusal of the Circuit Court to grant' a new trial may be assigned for er* ror.
    APPEAL from the Washington Circuit Court. — This was an action of assumpsit. Plea, non assumpsit. The evidence in the cause was made a part of the record by a bill of exceptions. Verdict for the plaintiff below. A motion for a new trial, on the ground that the verdict was not warranted by the evidence, was overruled, and judgment rendered upon the verdict.
   Holman, J.

There can exist no doubt, but that the defendant in the Circuit Court, was entitled to a new trial. But it is contended, that the refusal of a new trial cannot be assigned for error, because the granting a new trial rests solely in the discretion of the Court below. If this argument would extend further, and show that a new trial is only a matter of favour, it would be conclusive. But although new trials, on their first introduction, were considered indulgences to the parties, jet the principles of law by which they are regulated, have been so long and so well settled, as to render new trials in many cases demandable as a matter of right. Where, for instance, as in the present case, the jury have found a verdict without evidence, or, which amounts to the same thing, without evidence to show, a legal demand, the Court is as much bound to grant a new trial, as it would have been to have given judgment for the defendant on a demurrer to evidence. And whenever a new trial is a matter of right, there is no question with us, but that a refusal of that right may be assigned for error in this Court .

Thompson, and Moore, for the appellant.

Dewey, and Raymond, for the appellee.

Per Curiam.

The judgment is reversed and verdict set aside, with costs. Cause remanded to the Circuit Court, with directions to award a venire facias de novo. 
      
       Acc. Maxwell v. M’Ilvoy, 2 Bibb, 211. — Contra, Wright v. Small’s Lessee, 2 Binn. 93. — Henderson v. Moore, 5 Cranch, 11. — The M. I. Co. of A. v. Young, ibid. 187. — Barr v. Grate’s Heirs, 4 Wheat. 213. In Blunt's Lessee v. Smith, 7 Wheat. 272, Marshall, C.J. says: It is well settled that this Court will not revise the opinion of a Circuit Court, either granting or rejecting a motion for a new trial.
     