Hall, Justice.
1. This was the first grant of a new trial, and we find our[332]*332selves unable to control the discretion of the court in ordering it, as there appears to have been no abuse of such discretion in so doing. The issue was made upon the delivery of the deed to the grantee, under which the plaintiff in ejectment claims title. There was certainly some evidence that it was delivered, which is much strengthened by the newly discovered evidence set forth in the motion. It is somewhat uncertain, too, under the state of the pleadings, what portion of the tract the jury found for the plaintiff, whether it was one-half or one-fourth of the entire premises in dispute. What is left m doubt by the trial already had will probably be rendered clearer on another hearing, which, in the opinion of the judge, justice to the parties required.
2. The consent of the defendant to the order taken in term to present the motion for a new trial in vacation, together with the brief of the oral and copy of ihe documentary evidence for approval of the court, will be assumed, from the fact that he was present and assisted in making up the motion and agreed to the brief, as well as from his assent, after this had been done, to the postponement of the hearing to a future day, of which the judge was to give both parties notice. That the judge proceeded to hear and determine the case without giving the notice, makes no difference, since, at the succeeding term of the court, he set aside that judgment, and heard the case when both parties were present, and on that hearing set the verdict aside and ordered a new trial. Neither then, .nor at any previous stage of the proceeding, did he move to dismiss the application because the motion was not made and filed at the term of the court when the trial was had. His failure to object amounts to a waiver; at all events, no such question was made and determined by the superior court, and consequently there is no decision of the point which we are authorized to review. The only error which the bill of exceptions assigns to the judgment ordering a [333]*333new trial is, that it is “ contrary to law, equity and the evidence.” For the reasons given, we think this assignment insufficient.
Judgment affirmed.
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