1. Under the rulings made in the cases of Hightower v. George, 102 Ga. 549, and Malsby v. Young, 104 Ga. 205, there was no error in refusing to dismiss the motion for a new trial.

2. Applying the law laid down in section 5585 of the Civil Codé to the facts appearing in the record, the judgment granting a first new trial will not be disturbed. Weinkle v. Brunswick & W. R. Co., 107 Ga. 367. Judgment affirmed.