Hill

The only ground relied on was, that the verdict was against the evidence in the case.

The statement contains no portion of the, evidence, or any reference thereto, to explain the grounds taken. In the argument, the respondent, to sustain his position, referred to the recollection of the judge as to what the evidence was. The plaintiff objected to this course, insisting that there was nothing before the Court to support the motion, upon which it could even be argued.

The statute requires the statement of the grounds upon which a motion for a new trial is made, to contain so much of the evidence as may be necessary to explain the grounds, on reference thereto. Practice Act, sects. 195. 194; stat. of 1850, p. 81. The judge had no discretion, for the statute is express, that the right to move for a new trial shall be deemed waived, if a statement is not filed within five days after notice.

And by statute parties have a right to appeal from an order granting a new trial. Practice Act, sect. 347.

*307 The opinion of the Court was delivered by Chief Justice Murray.

This is an appeal from an order of the Court below, granting a new trial, on the ground as stated in the record, that “…