concurring specially. There are various expression's in the opinion in this case in which, I can not concur, and I agree to the judgment of affirmance solely upon the ground that so far as the plaintiff in error is concerned, the grant of the new trial of which he complains is in effect the first grant of a new trial, and, under a well-settled rule, the exercise of the discretion of the trial judge in such case is not to be controlled.