Heydenfeldt, Justice, delivered the opinion of the court. There is in this case, no conflict of evidence whatever. It matters not that the defendant, for his own security, had verbally stopped the freight-money. This seems to have given much offence to the plaintiff, and his part owner; and they therefore appeared to decline the proper care and responsibility which belonged to them as owners.

The act of Hoyt, in receiving the hire from Southorne, and giving his consent for the vessel to make a trip to Angel Island, was no trespass; taken in connection with the fact, that he had stopped the freight-money previously, it amounted to a waiver of his design for this one occasion; and, therefore, it was no authority to Southorne to take the vessel without the consent, or otherwise, than acting under the direction of the plaintiff and Moffit. So it was evidently understood by Southorne, because we find him applying to them for their consent, notwithstanding he had obtained the plaintiff’s.

It was an easy matter for them to have prevented any interference with their property, by simply objecting; but they made no effort to do so, for although they did not affirmatively consent, they did not prohibit Southorne; but on the contrary, acting under a mistake as to their legal right and remedy, they implied a consent by saying that they held Hoyt responsible. The court below charged the jury, properly, as to all the points which are here considered.

The only error, therefore, to be passed upon, is the refusal to grant a new trial, and relieve the defendant from the strange and unaccountable verdict of the jury. We have invariably held, that refusing or granting a new trial would not be disturbed, except when there was a gross abuse of discretion; nor when the decision of the court is upon mere questions of fact. In this case, however, as a question of law, it is beyond dispute, that the defendant is not liable. The court might well have granted a nonsuit, or instructed the jury to bring in a verdict for the defendant.

It is the least then it could have done, to grant a new trial; and the refusal to do so, is such an improper use of its discretion, as calls for the exercise of the revisory power of this court. The judgment is reversed, and the case remanded. [Note.—A petition was filed, for a rehearing in the above case by respondent, on the 13th December, on which is endorsed per Murray, Chief Justice:— “ Let a stay of proceedings be entered, until the further order of this court.”]