“An order for re-trial inevitably implies that one of the parties, usually the plaintiff, is being given another opportunity to relitigate the same matter and certainly before deciding to make such an order we think that an appellate tribunal should satisfy itself that the other party is not thereby being wronged to such an extent that there would be a miscarriage of justice. We do not propose, as the matter had not been fully argued before us, to lay down any hard and fast rule as to the circumstances that would justify the exercise of the power to order a retrial but we must and do point out that an order for a retrial is not appropriate where it is manifest that the plaintiffs’ case has failed in toto and that no irregularity of a substantial nature is apparent on the records or shown to the Court.”
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