declaration, which might be made the subject of a motion in arrest of judgment. Lane v. Crockett, 7 Price, 566. So, where the plaintiff proceeded to trial, without adding the similiter to a plea concluding to the country, and obtained a verdict; a new trial being moved for on this ground, the court held that as the plea concluded with an "&c.," the "&c." might after verdict be deemed to include the similiter, and they therefore refused the rule. Swain v. Lewis, 3 Dowl. 700. Where a defendant moved for a new trial in an action of slander, to enable him to plead specially a justification which he was not permitted to give in evidence under the general issue, the court refused it, even on payment of costs. Kirby v. Simpson, 3 Dowl. 791. And the same where the new trial was for the purpose of enabling the defendant to amend a plea of right of way, which described the line of way incorrectly. Edwards v. Broxton, 2 Cromp. & J. 18.

Where a plaintiff was nonsuit, for a trifling variance between the contract set out and that proved, the court granted a new trial on payment of costs, with leave to the plaintiff to amend, and to the defendant to plead de novo or demur. Williams v. Pratt, 5 B. & A. 896. But in a similar case, the court of Common Pleas refused this. Brown v. Knill, 2 Brod. & B. 395. Where in ejectment, a new trial was moved for, on the ground of variance between the record of nisi prius and the issue, in the description of the premises; the court refused it, as it was not shown how they were described in the declaration. Doe v. Wylde, 2 B. & A. 472. Nonsuits for variance, &c., now seldom occur, on account of the power possessed by the judge at nisi prius to amend during the trial. See post, tit. "Amendment." And where in debt on bond, on a writ of trial before the sheriff, there was a variance between the bond set out and that proved, in the amount, and the undersheriff refused to nonsuit the plaintiff, but allowed him to take a verdict: the court refused to set it aside. Hill v. Salter, 2 Dowl. 380.

Where a party is taken by surprise.] Where the party shows that the case set up by his adversary was a surprise upon him, and that had he known it he could have met it by evidence: if the court be satisfied of this, and that it is essential to the ends of justice that the case should be submitted to a jury a second time, they will usually grant a new trial. But they will not in general grant a new trial, on the ground that a witness gave different evidence from what was expected by the party calling him. Hewlett v. Crutchley, 5 Taunt. 277. So, where a witness proved a fact to the surprise of the other party, the court refused a new trial on that ground, although it appeared that by mistake he was not cross-examined, nor was any observation made upon his testimony, or any evi

dence given to contradict him. Bell v. Thompson, 2 Chit. 194. and see Harrison v. Harison, 9 Price, 89.

In cases of contested rights to land, &c.] Where there had been but a short time for investigating a question of a doubtful and obscure nature, relating to real property of great value, although conflicting evidence had been left to the jury, and the court did not think their verdict wrong, yet as the inheritance was to be bound for ever by the verdict, they granted a new trial on payment of costs. Swinnerton v. Marquis of Stafford, 3 Taunt. 91. So, in an action for tolls of a market, the court granted a new trial, in order that a second jury might say whether they could presume a grant from the crown of such tolls, subsequent to the original charter. Lowden v. Hierons, 2 Moore, 102.

In penal actions.] In penal actions, where there is a verdict for the defendant, or the plaintiff is nonsuit, the court will not grant a new trial, Hooper v. Cobb, 2 Tidd. 941. Fonereau V., 3 Wils. 59. Rawston v. Etteridge, 2 Chit. 273. Brooke v. Middleton, 10 East, 268, except for misdirection. Wilson v. Rastall, 4 T. R. 753. Calcraft v. Gibbs, 5 T. R. 19. But they will, in actions by parties grieved. Ld. Selsea v. Powell, 6 Taunt. 297. And in one case, in an action for penalties, where the evidence for the plaintiff was clear and positive, and might have been answered if false, the jury having required the statute by which the penalties were created to be handed to them, with which they retired, and afterwards returned with a verdict for the defendant: the court, considering that the jury must have put a wrong construction on the statute, and that it was equivalent to a misdirection, granted the plaintiff a new trial. Gregory v. Tuffs, 2 Dowl. 711.

In hard or trifling actions.] In trifling actions, if the defendant have a verdict, the court will seldom grant a new trial, unless for misdirection, or for fraud or malpractice, or the judge have given the defendant leave to move, Hooper v. Cobb, 2 Tidd. 941. Taylor v. Green, Id. Brooke v. Middleton, 10 East, 268, or unless the action is brought to try some right; Turner v. Lewis, 1 Chit. 265; they have refused to grant it, not only in the case of a verdict against evidence, but also where the application was made on the ground of surprise and of fresh evidence being found. Bransdon v. Didsbury, 9 Dowl. 199, 10 Law J., 10, qb. And an action is said to be trifling in this respect where the damages are under 201. Woods v. Pope, 1 Bing. N. C. 467. Taylor v. Green, 2 Tidd. 941. Jones v. Dale, 9 Price, 591. Manning v. Underwood, 1 M‘Lel. & Y. 266, see Roberts v. Carr, 1 Taunt. 495. Marsh v, Bower, 2 W.

Bl. 851. Green v. Speakman, 8 Moore, 339.

v. Phillips,

1 Cromp. & M. 26. So, if a verdict be given for the defendant, the court will not grant a new trial, if it appear from the evidence that the plaintiff, if he had succeeded, would not have been entitled to 201. damages. Haine v. Davey, 2 Har. & W. 30, and see Burton v. Thompson, 2 Burr. 664. But this rule does not apply to cases, where the trial has been before the sheriff under a writ of trial; Edwards v. Dignam, 2 Dowl. 642; in such cases the court will grant a new trial, unless the verdict be under 51. Packham v. Newman, 1 Cr. M. & R. 585. Vide post.

If the defendant have a verdict in a hard or vexatious action, the court will seldom grant the plaintiff a new trial. Macrow v. Hull, 1 Burr. 11. Penprase v. Johns, 2 Nev. & M. 376. Johnson v. Piper, Id. 672. On the other hand, where the plaintiff has a verdict, the court will not in general grant a new trial to let in an unconscionable defence, or one not according with the merits of the case. Gist v. Mason, 1 T. R. 84. Tullidge v. Wade, 3 Wils. 18. If a fair legal objection, however, be taken at the trial, and overruled by the judge, without reserving the point, and the court afterwards be of opinion that it was a good ground of nonsuit, although the court in such a case cannot order a nonsuit to be entered, they will grant a new trial. Minchin v. Clement, 1 B. & A. 252, and see Ritchie v. Bowsfield, 7 Taunt. 309. But where the verdict is according to the justice of the case, the court will seldom interfere to disturb it, Aylett v. Lowe, 2 W. Bl. 1221. Sampson v. Appleyard, 3 Wils. 272, even although there have been misdirection. Edmonson v. Machell, 2 T. R. 4. Wilkinson v. Payne, 4 T. R. 468. Cox v. Kitchen, 1 B. & P. 338. Where, however, in an action upon a covenant for an increased rent of land converted into tillage, the jury instead of giving the increased rent, gave damages for the actual injury sustained, the court granted a new trial, and without payment of costs, although it was urged that the verdict was according to the justice of the case. Farrant v. Olmins, 3 B. & A. 692.

Setting aside a nonsuit.] If the judge at the trial, from mistake of law, nonsuit the plaintiff, the court in general, upon application, will set aside the nonsuit, and grant a new trial. But where the plaintiff's counsel, after the judge had begun to sum up, proposed to be nonsuit, and the plaintiff was nonsuit accordingly, the court held that he could not afterwards move to set aside the nonsuit. Simpson v. Clayton, 2 Bing. N. C. 467, 1 Hodg. 463. Butler v. Dorant, 3 Taunt. 229. Barnes et al v. Whiteman, 9 Dowl. 181. But if the plaintiff's counsel submit to be nonsuit, from deference to the opinion of the judge, if that opinion be incorrect, the court will set aside the nonsuit and grant a new trial. Alexander v. Barker, 2 Tyr. 140.

Setting aside a verdict, and entering a nonsuit.] If there be doubt at the trial, on a point of law, whether the action will lie, or whether the plaintiff has proved his case, the judge, instead of nonsuiting the plaintiff, may direct a verdict to be found for him for such damages as the jury may think him entitled to, and may then give the defendant leave to move the court to set aside the verdict and enter a nonsuit. Afterwards when the case comes before the court, and they have the whole facts before them on the judge's notes, they may consider, not merely the point of law reserved, but the whole case, and come to such decision as they think the facts warrant. Doe v. Dodd, 2 Nev. & M. 838. The defendant, however, cannot move thus to enter a nonsuit, unless leave for that purpose have been given to him by the judge at the trial; Minchin et al. v. Clement, 1 B. & A. 252. Rickets v. Burman, 4 Dowl. 578; although where there is a verdict for the defendant, the court in some cases have ordered it to be set aside and a nonsuit entered, to enable the plaintiff to bring another action for the same cause, where his right to property savouring of the realty, or the like, would be concluded, if the defendant's verdict were allowed to stand. Lee v. Shore, 2 D. & R. 198. Hodgson v. Forster, ld. 221. So, the court, instead of ordering a nonsuit to be entered, have granted a new trial, the plaintiff agreeing to pay all the costs of the former trial. Doe v. Stagg, 9 Law J., 73, cp.

The execu

To set aside the execution of a writ of inquiry.] tion of a writ of inquiry may be set aside for the same defects as a verdict, and a new writ awarded; see Baylis v. Lucas, Cowp. 112. Irwin v. Dearman, 11 East, 23. Elliott v. Nicklin, 5 Price, 641; and the court will refuse the rule, in all cases where under the same circumstances they would refuse a new trial. See Grater v. Collard, 6 Dowl. 503. In moving for the rule, the undersheriff's notes, verified by affidavit, are produced to the court, but the rule is drawn up on reading the affidavit only; Stephens v. Pell, 2 Dowl. 629; and if there be any delay in obtaining the notes, the court will allow a further time for making the motion, or if the undersheriff refuse to give them, the court will probably oblige him. Thomas v. Edwards, 2 Dowl. 664. The rule may be moved for at any time before final judgment is signed. Denny v. Trapnel, 2 Wils. 378.

To set aside a verdict on a writ of trial.] The court will set aside a verdict before the sheriff, &c., upon a writ of trial, not only for misdirection, but for any other cause for which they would set aside a verdict in ordinary cases. That the cause of action is not such as is the subject of a writ of trial, is not in strictness a ground for setting aside the verdict, but is the subject of an application to set aside the proceeding for irregularity; Walker v. Needham, 1 Dowl. N. C. 220; and the court

feel a great disinclination to entertain such a motion, if made by the party who obtained the order for the writ of trial. Price v. Morgan, 2 Mees. & W. 53. Walker v. Lee, 11 Law J., 58, cp. The rule which prohibits a motion for a new trial, where the amount recovered or to which the party is entitled, is under 201., does not extend to new trials upon writs of trial; Edwards v. Dignam, 2 Dowl. 642; the rule as to writs of trial, in this respect, is, that the court will not grant a new trial, where the damages are under 5l., Packham v. Newman, 1 Cr. M. & R. 585. Fleetwood v. Taylor, 6 Dowl. 796, unless for misdirection or fraud; even where it appeared that the action was one of several, brought by different plaintiffs for aliquot parts of a sum exceeding 51., the court refused the rule. Williams v. Evans, 2 Mees. & W. 220. On the other hand, if the sum indorsed upon the writ exceed 201., and the case be tried before the sheriff, the court will set aside the verdict. Edge v. Shaw, 4 Dowl. 189. So, if the cause be tried in the absence of the defendant, before the time mentioned in the notice of trial, the court will set aside the verdict, and with costs. Hanslow v. Wilks, 5 Dowl. 295. But where there was a variance between the bond declared upon and that produced in evidence, in the amount, and the undersheriff refused to nonsuit the plaintiff, but left the case to the jury, who found a verdict for the plaintiff; the court refused a new trial for the variance, although no amendment had been made, nor the facts found specially, according to stat. 3 & 4 W. 4, c. 42, s. 24. Hill v. Salter, 2 Dowl. 380. A nonsuit however cannot be entered, at the instance of the defendant, unless the undersheriff have expressly given him leave to move for it. Ricketts v. Burman, 4 Dowl. 578.

The motion must be made within four days after the return of the writ of trial; otherwise the court will not entertain it, Wheeler v. Whitmore, 4 Dowl. 235. Price v. Trenchard, 1 Dowl. N. C. 298, even although the party have been prevented from moving in time, for want of the sheriff's notes. Anon. 1 Har. & W. 146. And it is no objection, if the application be made within such time, that judgment has already been signed and execution issued. Angel v. Ihler, 9 Law J., 8, ex. A copy of the notes of the undersheriff or other presiding officer, verified by affidavit, must be produced to the court, at the time of moving for the rule; Muppin v. Gillutt, 4 Dowl. 190. Burney v. Moxal, 3 Nev. & M. 472, n. Johnson v. Wells, 2 Cr. & M. 428. Grainge v. Shopper, 2 Dowl. 644. Eden v. Bretten, 9 Dowl. 245; and see Doctor v. Stanley, 9 Law J., 199, cp., or it must be stated, on affidavit, that an application was made to the undersheriff for his notes, and that he refused to give them, and his reasons for doing so, if he have given any. Hall v. Middleton, 1 Har. & W. 7, 4 Nev. & M. 368. If the notes cannot be had within the time limited for making the motion,