The plaintiff says the question involved in this case is: Did the trial court commit prejudicial error in continuing to a subsequent térm plaintiff’s motion to set aside the verdict, and in acting upon the motion at such subsequent term by allowing the motion and setting aside the verdict, under the circumstances of this case? We think so.
C. S., 591, is as follows: “Tbe judge 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 the exceptions, or for insufficient evidence, or for excessive damages; but such motion can only be heard at the same term at which the trial is had. When the motion is beard and decided upon the minutes of the judge and an appeal is taken from the decision, a case or exceptions must be settled in the usual form, upon which the argument of the appeal must be bad.” (Italics ours.) See S. v. McLamb, ante, at p. 451.
There is no question but that tbe Forsyth County Court in its sound discretion, not arbitrarily or capriciously, bad tbe right to set tbe verdict aside as “against tbe greater weight of tbe evidence.” This is so well settled that it is not debatable. From this ordinarily there is no appeal. Hoke v. Whisnant, 174 N. C., 658; Hardison v. Jones, 196 N. C., 712.
*527“In Settee v. Electric Ry., 170 N. C., 365, it was said: ‘Tbe discretion of tbe judge to set aside a verdict is not an arbitrary one, to.be exercised capriciously or according to bis absolute will, but reasonably and with the object solely of presenting what may seem to bim an equitable result.’ And again in Cates v. Tel. Co., 151 N. C., 506: ‘It rests in bis sound discretion, which should be exercised always, not arbitrarily, but with a view to a correct administration of justice according to law.’ ” Bailey v. Mineral Co., 183 N. C., at p. 527. In the Bailey case, supra, it will be noted that the facts were “The jury returned a verdict in favor of the plaintiffs, and the defendants at the same term duly entered a motion to bave the same vacated and set. aside. Tbis motion, by consent, was continued to be beard in vacation at some time and place convenient to the parties and to the court.” Under that consent agreement, the court upon notice to the counsel set the verdict aside as “contrary to the weight of the evidence.”
Now under 0. S., 591, we bave clear and strong legislative language “but such motion can only be beard at tbe same term at wbicb tbe trial is bad.” Now tbis statute of course can be waived by express or implied consent. On tbis record there is no express consent and taking tbe record as a whole there was no implied consent, we think tbe defendants did all tbat was necessary to preserve their legal rights under all tbe facts and circumstances of tbis case. We can see no consent express or implied made by defendants to waive their legal rights under tbe statute.
Tbe cases examined all seem to be premised tbat to waive tbe provisions of O. S., 591, tbe continuance must be by consent. England v. Duckworth, 75 N. C., 309; Moore v. Hinnant, 90 N. C., 163; Myers v. Stafford, 114 N. C., 231; Stilley v. Planing Mills, 161 N. C., 517.
In Clothing Co. v. Bagley, 147 N. C., at p. 38, Brown, J., says: “His Honor bad no right to set aside the verdict at the succeeding June Term, although the said judge held both terms, unless the parties to the action bad consented to the continuance of such motion to the June Term. At June Term the judge finds as a fact tbat such consent bad been duly given at March Term, and that finding, entered of record, is practically an amendment of the record at March Term. We cannot review the exercise of bis Honor’s discretion in granting a new trial upon the ground that the verdict is against the weight of the evidence!” Decker v. R. R., 167 N. C., 26, is not at variance with the position here enunciated. In that case, at p. 31, it is said: “Tbe legal effect of the transaction was to set aside the verdict, with leave to strike out the order if the proposition of the judge was afterwards accepted. Tbis was the substance of it.” And tbis was done at the term in wbicb the action was tried.
*528From the facts gathered on the hearing- and the record, the Lincoln Theatre was a Negro place of amusement operated by defendants. A jury has found for the defendants. A verdict is the unanimous decision made by a jury and reported to court and is a substantial right. Sitterson v. Sitterson, 191 N. C., 319, 131 S. E., 641.
Defendants through their counsel seemed to have used due care, as appears from the record, not to consent to a continuance of the case, either by express or implied language or conduct. They seem to have been cautious and polite about the matter. As a matter of common knowledge this whole proceeding was in an Anglo-Saxon atmosphere. A jury has, and as the evidence indicates, decided with the defendants that the vendor was putting over a worthless talking picture machine in the Negro Lincoln Theatre, and the plaintiff corporation that purchased the notes and now own same had notice. From the evidence: “The record on the biophone was supposed to synchronize with the film that was being run. For awhile it would talk and synchronize together, and then get out, and then it would stop talking and we wouldn't have any sound at all. Sometimes the picture would be saying one thing and the record another.”
It seems as if the vendor sold defendants a “crazy biophotophone” or talking picture machine. The defendants in their brief say in regard to the judge making up their exception in the Forsyth County Court and his finding, that their attitude “was merely a peaceful protest.” We can understand their respect for the court, and this ought not to be held against them, when the record as a whole shows that their exceptions and assignments of error were to the effect that they never consented to waive the rights that the statute gave them. In fact the Forsyth County Court judge says “There was no agreement.”
We think there was prejudicial error for which the judgment of the court below must be
Reversed.