delivered the following dissenting opinion.
If the statute contemplates, as my brethren say, and I am inclined to think it does, that causes of this character shall be tried by the judge, without the assistance of a jury, then appellant has not had such a trial as the law contemplates. I cannot assent to the statement that in declining to set the verdict aside the judge necessarily passed on the facts himself. If there is sufficient evidence to support a verdict, the judge, on a motion for a new trial, has nothing to do with the question of the correctness of the verdict; that being a matter wholly within the province of the jury. It may be that he himself would have reached a different conclusion on the facts, but would not be warranted in setting the verdict aside.