By the Court. delivering the opinion.
The Court in the exercise of its discretion saw fit to grant a new trial in this case; and the only question is, are we bound to control that discretion on account of its flagrant abuse ?
In England, the appellate Court will never refuse a new trial, where the Judge who presided is dissatisfied with the finding. And there is nothing in the law of this State which constrains this Court to enforce a different rule. By the Act of 1853, the Superior Courts are clothed with power to grant new trials, where the verdict is strongly and decidedly against the weight of evidence. It is not obligatory to do so even in such a case. But they are not interdicted from granting new trials, even where the proof preponderates in favor of the verdict. In this case there is much conflict in the evidence.
Had the Judge refused a new trial, we are not prepared to say that we should have overruled his discretion. Still less are we disposed to do so, when he has remanded the cause for a re-hearing.
It may not be amiss to add, that there is some testimony that the note sued for was deposited by the intestate of the plaintiff, with the defendant, for the future and permanent support and maintenance of his younger children. If this be so, and the contract was of a character to render it irrevocable by Caleb Frirdoth in his lifetime, in that event, a *415trust would spring up in favor of these minors, which might be specifically enforced in favor of the minor children against the defendant, either pending the trover action, or at its termination.
So that should the jury ultimately find for the defendant, and thus abnegate the right of the administrator of Faircloth to the note; it does not follow, that the title to this paper would he thereby vested absolutely in Nelms.
I merely throw out this hint for as much as it is worth. If these orphan minors have rights, it would be a pity to have them overlooked or lost for want of being prosecuted.
Judgment affirmed.