To compel vacation of order granting a new tidal.

Denied April 20, 1870.

A motion for a new trial was made and opposed because (1) leave to make the motion had not been granted; (2) that the motion was not made within the time allowed by the rules and practice of the court; and (3) a bill of exceptions had been settled and signed and a writ of error issued and served, whereupon a motion for leave was made and granted, and by consent the argument was had at once and the new trial granted on condition that the writ of error be dismissed.

Held, that the matter was one of discretion and not open to-review.