#### JOS. M. S. ROGERS v. B. W. GOODWIN.

When a verdict upon issues sent for trial from this court to a Superior-Court, is, in the opinion of the Judge who presided, contrary to the weight of the evidence ; or in case .of any other miscarriage by the court, or the jury, such Judge has full power to grant a new trial.

Oases in equity pending at the adoption of the present constitution, cannot now be transferred for trial to this court; they must be heard below, and can only be constituted here by appeal.

(Peebles v. Peebles, 63 N. C. 656, cited and approved.)

*279Motion for a new trial of issues, made before Watts, J., at Fall Term 1870 of Northampton Court.

Tbe issues bad been sent for trial bom tbis court.

No statement of tbe facts is necessary.

Bragg, for tbe motion.

Peebles, contra.

Pearson, C. J.

His Honor was of opinion, that tbe verdict was against tbe weight of tbe evidence; but be doubted bis power to set aside tbe verdict and order a new trial, and on that ground refused tbe motion.

On tbe argument before us, it was properly conceded that bis Honor bad tbe power, and tbe only question was upon tbe construction of tbe words used by bim in sending up tbe issues.

We are satisfied that be would bave ordered a new trial, but for bis doubt in regard to tbe power to do so on tbe “ trial of issues ” sent from tbis court.

Upon tbe trial of issues of fact sent down by tbis court, tbe Judge in tbe court below bas fall power to correct any miscarriage of tbe jury or any error that may bave been committed by bimself, in respect to tbe admission or rejection of evidence, or in bis charge, by granting a new trial. In these respects bis power is tbe same as on tbe trial of actions: Peebles v. Peebles, 63 N. C. 656. Tbe English precedents in regard to issues sent by a Court of Equity, are not applicable. Ours is a new system which rests on tbe provision of tbe constitution, “No issue of fact shall be tried before tbe Supreme Court.” Art. 4, sec. 10.

We take occasion to say that tbe statute allowing cases in equity to be transferred to tbe Supreme Court for trial, is repealed, by tbe effect of tbe constitution creating tbis court as a “ Court of Appeal.”

Equity cases pending before tbe adoption of the constitu*280tion, must be beard and disposed of below, and can only be constituted in this court by appeal.

Tbe verdict must be set aside, and a new trial of tbe issues ordered.

Pee, Curiam. Ordered accordingly.