By the Court

delivering the opinion.

A j udgment granting a new trial, is not final. When, therefore, the Court in which a verdict is rendered is dissatisfied with the verdict, and grants a new trial, the grant will not be disturbed by a reviewing Court, except in an extreme case.

Audit must be admitted, that the present case comes vory *167near to an extreme case. Indeed, as the case stands, ii comes quite to it. As the case stands, there is no affidavit of the truth of the plea; none of an expectation of ability to prove the plea on a new trial.

Therefore, we can only conditionally, affirm the judgment granting the new trial; namely on condition, that an affidavit of these two things be filed in the Court below by McMurrain within a reasonable time, to be judged of by that Court.

Judgment affirmed conditionally.'