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 tions, which bill, so far as appears, was not intended to be used on a motion for a new trial. Certainly the bill could not have been used as a basis for a motion without plaintiff's consent to waive the notice of intention, and no such consent is pretended. The order, under the circumstances, was made in disregard of plain statutory requirements. Defendant’s counsel has filed no brief in this court, and no case is cited or known to this court which lends the least countenance to such practice. The order recites that the court, “being of opinion that there was error” in the record, etc., ordered that the verdict be set aside, and a new trial granted. But before the district court could lawfully grant a new trial, as has been stated, a notice of intention must have been served or waived, and an opportunity to be heard must have been accorded to the plaintiff. We find, on inspecting the bill of exceptions on file in this court, and which properly came up as one of the documents on which the order was granted, that such bill, and all of the exceptions contained in it, would, under the statute, be disregarded upon a motion for a new trial, for the reason that nove of the errors in the bill have been particularly specified, as is essential when a motion for a new trial is based on exceptions or a statement. Subdivision 3, § 5090, Comp. Laws. Nor is the case one which falls under § 5091, Comp. Laws, allowing the district court to vacate a verdict and grant a new trial on its own motion. The court instructed the jury as follows: “The plaintiff has made a case, and is entitled to a verdict for some amount; so that it will not be necessary for you to consider anything further than the amount of grain taken by defendant into the elevator, the time when it was taken and the value of it.” The verdict does not disregard this instruction, but, on the contrary, conforms to it; nor does the verdict disregard the evidence in such a plain way as to indicate that it was rendered under the influence of passion or prejudice. Moreover, the order granting the new trial in terms precludes the idea that it was made under § 5091; nor is it claimed by counsel that the court assumed to act under that section in vacating the verdict. In this state, and in the late territory, the instances of vacating verdicts and granting new trials without application of the parties have been exceed-