(a) In Harvey v. Stokes, Willes, 5, the two last-mentioned statutes were held to extend only to mistakes in the names of the plaintiff or defendant, and not of third persons; but in Poitein v. Tregeagle, Raym. 771, it was held, in B. R. that the christian name of the plaintiff cannot be amended in a declaration by the bye.

The following decisions have also been made upon the subject of defects amendable, viz.

In Anon. Loft. 155, it was held, that all rules to amend shall be on payment of costs.

But no issue can be offered that is contrary to the record; yet a latitat, without a bill of Middlesex, will save the statute of limitations. Crokatt v. Jones, 2 Stra. 734. 2 Raym. 1441.

In an action for usury, the court will not allow sums and dates to be amended in the declaration, after the time limited by the statute is expired. Goff q. t. v. Popplewell, 1 Dougl. 114, (n.) 2 T. Rep. 707. Nor after the time for bringing a new action, where there has been unnecessary delay on the plaintiff's part. Steel q. t. v. Sowerby, 6 T. Rep. 171. Ranking q. t. v. Marsh, 8 T. Rep. 30. Sed secus, where the plaintiff has not unneces sarily delayed. Cross v. Kaye, 6 T. Rep. 543. Maddock q. t. v. Hammett, 7 T. Rep. 55. But not, if, by

such amendment, any new substantive cause of action, or any new charge against the defendant, is to be introduced. S. C.

A declaration in covenant against executors, in their own right, and who had merely acted in the disposition of the testator's effects, cannot be amended after a demurrer. Anon. 1 H. Bla. 37.

In an action against the hundred of P. on the stat. of 9 Geo. I. c. 22, for the value of a stack of coru maliciously burnt, the declaration stated, that notice was given to the inhabitants of the parish, instead of the town, village, or hamlet, which are the words of the act. Held, that this allegation is good, for the law intends every parish to be a vill, unless the contrary be shewn, or it appears that the parish consisted of several vills. Cooke v. Pimhill Hundred, 8 East, 173.

In assumpsit for breach of promise (inter alia) to execute a release, which defendant had agreed to give, the declaration described a release not co-extensive with that agreed to be given. Hield, that this defect cannot be cured by a verdict. Smith v. Woodhouse, 2 Bos. & Pull. 233.

(b) All amendments being discretionary in the court, they can only be permitted under particular circumstances, and in furtherance of justice. R. v. Grampound Corporation, 7 T. Rep. 669.

CHAPTER

(a) The principles on which new trials are granted, are (said Denison, J. in Bright v. Eynon, 1 Burr. 390,) difficult to explain, so as to lay down one absolute general rule; but "the "granting a new trial must depend

66

on the legal discretion of the court, guided by the nature and circum66 stances of the case, and directed "with a view to the attainment of "justice." And it is not enough, that the cause is of value and importance, to induce the court to grant a new trial, for it must also involve a doubt, though the value certainly weighs much with the court in granting a rule to shew cause. Vernon v. Hankey, 2 T. Rep. 113.

It was formerly a prevalent rule, that there should not be a new trial where evidence was given on both sides; but in Norris v. Freeman, 3 Wils. 38, the court said, it was frequently determined otherwise; and indeed that rule is not regarded in modern practice; for where the evidence is such as is proper to leave to the jury, upon the facts, the court will not grant a new trial, because the judge might have drawn a different conclusion from the jury, upon the matters of fact. Ashley v. Ashley, 2 Stra. 1142. Anon. 1 Wils. 22. Swain v. Hall, 3 Wils. 45. Hankcy v. Trotman, 1 Bla. 1. Camden v. Cowley, 1 Bla. 418. For whether there be any evidence, is a question

It

for the judge, and whether the evidence be sufficient is for the jury to determine. Carpenter's Company v. Hayward, Dougl. 360. (374.) But a new trial will be granted, if the jury, upon the facts, find a verdict contrary to law. Hodgson v. Richardson, 1 Bla. 463. Tindall v. Brown, 1T. Rep. 167. Pillans v. Van Mierop, 3 Burr. 1363. So where a point has been improperly left to the jury. Forcroft v. Devonshire, 3 Burr. 950. 1 Bla. 195. Edie v. East India Company, 2 Burr. 1216. 1 Bla. 295, Liverpool Corporation v. Golightly, Salk. 644, (n.) Bright v. Eynon,

sup.

Of late years, new trials have been granted, not only after trials at Nisi Prius, but also after trials at Bar, and it is equally reasonable, that it should be so in the latter case as in the former, or indeed more so, as the former must be done upon what actually came before a single jury, whereas the latter is grounded upon what must have manifestly appeared to the whole court. Bright v. Eynon, sup. For instances of new trials after trials at bar, see Musgrave v. Nevinson, Stra. 584, S. C. 2 Ld. Raym. 1358, and Rex v, Bewdley Corporation, 1 P. W. 212, and the cases there cited.

In ejectment, a new trial had after a trial at bar. Parkhurst, 2 Stra. 1105.

may be Smith v. But in

Argent

Argent v. Darrell, Salk. 648. 1 Raym. 514, it was refused, as not being conclusive. The grounds on which the court will be induced to grant a new trial are very numerous, and the causes of their refusal to grant one are still more so. It is sufficient, therefore, to shew, by general observations, first, On what grounds the court will grant, and secondly, For what causes they will refuse to grant a new trial, on any terms, simply referring to various authorities, by name, as they occur :

First then, it has been held, that, where the judge mistakes the point. of law before him, a new trial will be granted. Vide Buscall v. Hogg, 3 Wils. 146.

So if he misdirects the jury, Anon. Salk. 649; especially in a penal action, Calcraft v. Gibbs, 5 T. R. 19; or in an ejectment cause, Rice v. Shute, 2 Bla. 695. And so where he allows or over-rules the evidence contrary to law. How v. Strode, 2 Wils. 269.

So where the sheriff mistakes the law on a writ of inquiry. Markham v. Middleton, 2 Stra. 1259; and equally so, where the sheriff's jury mistake the law. Woodford v. Eades, 1 Stra. 425. Hayward v. Newton, 2 Stra. 490. Tatton v. Andrews, Barnes, 448. Anon. 12 Mod. 347.

So where the jury find a verdict contrary to the judge's direction in point of law, as in Jackson v. Duchaire, 3 T. R. 553; or contrary to law upon the facts proved, Hodgson v. Richardson, 1 Bla. 463. Tindall v. Brown, 1 T. R. 167. Pillans v. Van Mierop, 3 Burr. 1363; against the evidence. hurst, 2 Stra. 1105. Nevinson, Stra. 584.

or manifestly Smith v. ParkMusgrave v.

So where a point has been improperly left to the jury. Vide Foxcroft

v. Devonshire, 3 Burr. 930. 1 Bla. 195.

party

So where the principal question in the cause came not before the jury, Rex v. Malden, 4 Burr. 2135, or the witnesses were but partially examined. Norris v. Freeman, S Wils. 38.

So where a juror or talesman was sworn by a wrong name. Parker v. Thornton, Stra, 640.

So for any misconduct or partiality in the jury. Dent v. Hertford Hundred, Salk. 645. Hale v. Cote, 1 Stra. 642. Vasie v. Delaval, 1 T. R. 11. Philips v. Fowler, Comy. 525. Chambers v. Caulfield, 6 East, 244.

So where the damages are flagrantly and extravagantly excessive, or influenced by passion or partiality. Junes v. Sparrow, 5 T. R. 257. Pleydel v. Dorchester, 7 T. R. 529,

So where the plaintiff, against the judge's opinion, refuses to submit to a nonsuit, and a verdict is found for him. Pochin v. Pawley, 1 Bla. 670.

So where there are two concurrent verdicts. Goodwin v. Gibbons, 4 Burr, 2108.

So where a verdict is properly given on one count and improperly on the other. Edie v. East India Co. 2 Burr. 1216. 1 Bla. 295.

So where the testimony of the witnesses at the trial have been falsified, Lister v. Mundell, 1 Bos. & Pull. 427.

So where any artifice has been used. Anderson v. George, 1 Burr. 352. Anon. Loft. 212.

So in some cases on a suggestion of surprise. Street's Case, 7 Vin. 24. Bayley v. Boorne, Stra. 392. Rex v. Urling, Fortesc. 198.

And so where, after trial, a new discovery has been made. Broadhead v. Marshall, 2 Bla. 955. Fabrilius v. Cock, 3 Burr. 1771. Turner v. Pearte, 1 T. R. 717.

Secondly, As to the causes of refusal by the court to grant a new trial, it has been held, that, though

the

the judge may have been mistaken in point of law, yet where complete and substantial justice has been done, a new trial ought not to be permitted. Edmondson v. Machell, 2 T. Rep. 4. Wilkinson v. Payne, 4 T. Rep. 468. Hankey v. Trotman, 1 Bla. 1. Anon. 1 Wils. 22. Swain v. Hall, 3 Wils. 45. Sampson v. Appleyard, 3 Wils. 272.

Nor is value or importance alone a sufficient inducement, unless some doubt arises also. Vernon v. Hankey, 2 T. Rep. 113.

Neither will the court grant a new trial to gratify litigious passion upon every point of summum jus. Farewell v. Chaffey, 1 Burr. 54. Burton v. Thompson, 2 Burr. 664. Marsh v. Bower, 2 Bla. 851.

Nor where the verdict was against evidence, if the suit be frivolous. Macrow v. Hall, 1 Burr. 11.

Nor merely because the case was a very hard one. Smith v. Bramston, or Frampton, Salk. 644. 5 Mod. 87. Dunkly v. Wade, Salk. 653. Reeveley. Mainwaring, 3 Burr. 1306. Sparkes v. Spicer, Salk. 648.

Nor for excessive damages, unless they are outrageously extravagant, Leman v. Allen, 2 Wils. 160. Huckle . Money, 2 Wils. 205. Gray v. Grant, 2 Wils. 252. Beardmore v. Carrington, 2 Wils. 246. Sharpe v. Brice, 2 Bla. 942. Benson v. Frederick, 3 Burr. 1845. Fabrigas v. Mostyn, 2 Bla. 929. Leith v. Pope, 2 Bla. 1327. Gilbert v. Burtonshaw, Cowp. 230. Ducker v. Wood, 1 T. R. 277. Nor unless passion, resentment, or partiality in the jury appears. Wiljord v. Birkeley, 1 Burr. 609. Duberley v. Gunning, T. Rep. 651, which latter case, Lord Kenyon said, in Jones v. Sparrow, 5 T. R. 257, was sui generis, and could not govern any other.

Nor will a new trial be granted simply on account of the smallness

of

of the damages. Barker v. Dixon, 2 Stra. 995. Mauricet v. Brecknock, Dougl. 491 (509.)

Nor in all cases merely because the matter in dispute is small. Jackson v. Duchaire, 3 T. R. 553.

Nor for a mere mistake in the proceedings. Leman v. Allen, sup. Malker v. Brinker, 2 Wils. 243.

Nor for a mistake in point of law against the equity of the case. Deerly v. Mazarine, Salk. 646. 1 Ld. Raym. 147. Smith v. Page, Salk. 644. Wil kinson v. Payne, sup. Cox v. Kitchen, 1 Bos. & Pull. 338.

Nor where the verdict could not be supported by the form of action adopted, though the same effect might be had upon other proceedings. Gosling v. Wilcock, 2 Wils. 302. Foxcroft v. Devonshire, 3 Burr. 396. Sampson v. Appleyard, sup. Aylett v. Lowe, 2 Bla. 1221. Goodtitle v. Bailey, Cowp. 579. 601.

Nor, where there are two contrary verdicts, shall he against whom the last is given have a third trial. Parker v. Ansell, 2 Bla. 693.

Nor for the supposed incompetency of a witness called to prove a fact not disputed, and where another witness was produced to establish the same fact, though the verdict turned on another point. Edwards v. Evans, 3 East, 451.

Nor where evidence was neglected to be produced at the first trial. Richards v. Syms, post, 326 c. Et vide Spong v. Hog, 2 Bla. 802. Gist v. Mason, 1 T. Rep. 84. Anon. Fortesc. 40. Rogers v. Stephens, 2 T. R. 718. Cooke v. Berry, 1 Wils. 98. Price v. Brown, Stra. 691. Rex v. Helston Corporation, 10 Mod.

202.

Nor merely upon an after discovery that an adversary's witness was interested. Turner v. Pearte, 1 T. R. 717.

Nor because sufficient evidence

was