We know of no case where error has been maintained on this ground. The case does not come under the provisions of section 4 of the act to relieve the District Courts, passed April 12, 1858 (S. & C. 1155). Motions of this kind are addressed to the discretion of the court, and in the absence of statutory provision, its rulings thereon can not be assigned for error—at least not unless where the material facts are found by the court, or agreed upon by the parties, or where there has plainly been an abuse of judicial discretion.

Motion overruled.