The assignment of error relied on, and the only one we find it necessary to consider, is that the court in general term refused to entertain the appeal from the action of the court at special term, overruling the motion for a new trial, so far as it was based on the ground that the verdict of the jury was against the weight of evidence, becuase it was not an order from which an appeal lies from the special to the general term of the court. The opinion of the court, which is sent up with the record, expressly considers, discusses, and decides all the questions arising on the bills of exception, but no reason is given for that part of the judgment refusing to consider the appeal so far as it rested upon the order of the court at special term, overruling the motion for a new trial, based on the ground that the verdict of the jury was against the weight of evidence. It was said in argument at the bar that this was because, a few weeks before, in the case of Stewart v. Elliott, 2 Mackey, 307, decided March 13, 1883, the supreme court of the District of Columbia bad given a carefully considered opinion concerning the very point in controversy. It was decided in that case that the right of appeal on motions for a new trial from the special to the general term was given only in three cases: (1 Where the motion is based on exceptions taken during the progress of the trial; (2) where the verdict has been rendered upon insufficient evidence; and (3) for excessive damages. It was also decided that a verdict against the weight of evidence cannot be said to be a verdict upon insufficient evidence. The term 'insufficient evidence,' in section 804 of the Revised Statutes of the District of Columbia, being construed as meaning evidence not sufficient in law to support a verdict. It therefore held that a motion for a new trial, because the verdict was against the weight of evidence, is left by the statute entirely within the discretion of the judge at special term trying the case, and that no appeal lies from his determination to the general term.
The sections of the Revised Statutes of the United States relating to the District of Columbia, affecting the question, are as follows:
'Sec. 753. The several general terms and special terms of the circuit courts, district courts, and criminal courts authorized by law are declared to be, severally, terms of the supreme court of the District of Columbia; and the judgments, decrees, sentences. order, proceedings, and acts of the general terms, special terms, circuit courts, district courts, and criminal courts rendered, made, or had, are, and shall be deemed, judgments, decrees, sentences, orders, proceedings, and acts of the supreme court; but nothing contained in this section shall affect the right of appeal, as provided by law.'
'See. 772. Any party aggrieved by any order, judgment or decree, made or pronounced at any special term, may, if the same involve the merits of the action or proceeding, appeal therefrom to the general term of the supreme court, and, upon such appeal, the general term shall review such order judgment, or decree, and affirm, reverse, or modify the same, as shall be just.'
'Sec. 800. Non-enumerated motions in all suits and proceedings at law and in equity shall first be heard and determined at special terms. Suits in equity, not triable by jury, shall also be heard and determined at special terms. But the justice holding such special term may, in his discretion, order any such motion or suit to be heard, in the first instance, at a general term.'
'Sec. 803. If, upon the trial of a cause, an exception be taken, it may be reduced to writing at the time, or it may be entered on the minutes of the justice, and afterwards settled in such manner as may be provided by the rules of the court, and then stated in writing in a case or bill of exceptions, with so much of the evidence as may be material to the questions to be raised, but such case or bill of exceptions need not be sealed or signed.
'Sec. 804. The justice who tries the cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages; but such motion shall be made at the same term at which the trial was had. 'Sec. 805. When such motion is made and heard upon the minutes, an appeal to the general term may be taken from the decision, in which case a bill of exceptions or case shall be settled in the usual manner.