#### SAMUEL WOLF v. H. GOLDSTEIN.

(Filed 27 October, 1926.)

Appeal and Error — Judgments Set Aside — Discretion oí Court.

The discretion, of a trial judge to set aside a verdict is practically unlimited, and will not be reviewed on appeal except in matters of abuse, instances not likely to arise.

Appeal by plaintiff from MidyeUe, J., at March Civil Term, 1926, of New Haitoveb. Affirmed.

Rodgers & Rodgers for plaintiff.

No counsel for defendant.

Per CuriaM.

Plaintiff brought this action to recover on certain notes alleged to have been executed by defendant to Mylisb, Mann & Drucker, for a valuable consideration, before maturity, endorsed, sold and delivered to tbe plaintiff by payee. That no part of tbe notes have been paid, and that tbe same are due and owing.

Defendant sets up certain defenses not necessary to set forth.

Tbe issues submitted to tbe jury and tbeir answers thereto, were as follows:

“1. Were tbe notes sued upon extorted from tbe defendant by threatening to defeat tbe offer of composition made by him in tbe bankruptcy proceeding's instituted against him? Answer: No.

“2. Were tbe notes sued upon procured from tbe defendant in fraud of bis other creditors? Answer: No.

“3. Were tbe notes sued upon executed by defendant upon tbe condition that they were to be void if tbe offer of composition made by him was declined by tbe United States Court in Bankruptcy? Answer: No.

“é. Is tbe plaintiff tbe bolder in due course of tbe notes sued upon? Answer: Yes.

“5. Is tbe plaintiff owner of tbe notes? Answer: Yes.

*819“6. What amount, if any, is tbe plaintiff entitled to recover % Answer: $1,200 and interest at 6 per cent per annum from dates of notes.”

Upon tbe coming in of tbe verdict, plaintiff tendered judgment to tbe court below in accordance with tbe jury finding. Tbe court below made tbe following order: “Tbe verdict in tbis cause is set aside in tbe discretion of tbe court.” Plaintiff assigned error and appealed to tbe Supreme Court: “For tbat tbe court refused to sign tbe judgment tendered by plaintiff as set forth in tbe record and set aside tbe verdict in bis discretion and allowed tbe defendant tbe right to file an amended answer of payment.”

Tbe trial court has a discretion in respect to setting aside verdict, exercise of which, in tbe absence of abuse, is not reviewable in tbe Supreme Court. 15 Enc. Digest of N. C. Reports, p. 112 and cases cited.

Walker, J., in Jarrett v. Trunk Co., 142 N. C., p. 469, says: “While tbe necessity for exercising tbis discretion, in any given case, is not to be determined by tbe mere inclination of tbe judge, but by a sound and enlightened judgment, in an effort to attain'the end of all law, namely, the doing of even and exact justice, we will yet not supervise it, except, perhaps, in extreme circumstances, not at all likely to arise; and it is therefore practically unlimited.” Billings v. Charlotte Observer, 150 N. C., 540; Hensley v. Furniture Co., 164 N. C., 148; Settee v. Electric Ry., 170 N. C., 365; Forester v. Betts, 179 N. C., 608; Likas v. Lackey, 186 N. C., 398; S. v. Sauls, 190 N. C., 810.

Tbe judgment below is

Affirmed.