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 *22discretion 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 (1).
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.