Payne

By the Court,

Two causes are assigned for the dismissal of the appeal. 1st. That an appeal will not lie from the decision of the court below, setting aside the verdict of the jury and granting a new trial. 2d. The decision appealed *35 from was the exercise of a discretion of the court which an appellate court ought not to interfere with.

That appeals from any judgment, order, or determination of the court of First Instance, taken before the passage of the statute of February 28th, 1850, and from any such judgment, order, or determination, made or rendered after the passage of said Act, will lie to this court, is clear from the third and sixth sections of said Act. This appeal was taken on the 8th day of February, A.D. 1850, and was clearly within the provisions of said third section.

The sixth section regulating the mode of effecting an appeal, among other things, provides, “ That appeals may be taken “ from any final judgment of any court of First Instance, ren- “ dered since the first day of January, A, I). 1847, or from any “ judgment or order of said court which may "be rendered any “ time hereafter.”

The case of Loring v. Illsley, decided by this court, falls within the…