This is a motion for a mandamus to

.compel the circuit judge to grant an order for a new trial as a matter of right under the statute in an action of ejectment. It appears, however, that there has been no trial at all, but only a non-suit. An application to set this aside would be addressed to the discretion of the court below; the statute has no reference to such a case. The .statute intends to give the parties a second trial upon the facts; and a case is only brought within it where it appears .that one trial has already been had. Comp. L., § 6238.

Motion denied.