sons in this case for discharging the rule.-The ground of the application was surprise. I have no doubt that the plaintiff was surprised when the defendant proved his acknowledgment, of having received money from him for which he had not thought proper to account, and was proceeding to recover by this action. If that had not been true, he should have requested to be nonsuited, that he might have become better prepared in another action; but he chose, notwithstanding, to go on and take the chance of a verdict, by letting the case go to the jury, in the hope, perhaps, that they would disbelieve the defendant's witnesses. Now suppose we should grant a new trial, the plaintiff might again take the chance of being believed, and if not, he might apply to the court again on the same grounds. It would become a common course on all occasions of failure, if this were to be tolerated, for a plaintiff instead of choosing to be nonsuited, as he ought to have done in this case, for that is the only proper course—to try first what the jury will do for him, and if he should fail, he will then apply to the court out of which the record issues for a new trial. It is impossible to grant or listen to such an application."(1)

So, in Oswald v. Tyler.(2) Appeal from the decree of the court of chancery denying a new trial. The grounds of the application are contained in the opinion of the court, who affirmed the decision, two out of three. By the President.-"Upon the facts in the case, it does not appear that any fraud was practised by the defendants by which this negligence on the part of the plaintiffs was produced, nor does it appear that there was any obstacle imputable to the defendants, to prevent their counsel, after the testimony was disclosed from suffering a nonsuit. He freely submitted the case to the jury, and took the chance

(1) Et vide 6 Moore & Payne, 229.

(2) 4 Randolph, 19.

of a verdict in his favour. The application then for relief is solely on the ground that great injustice has been done them in the trial at law. It seems to me very clear, that if a party neglects to avail himself of his remedies for injustice done, a court of equity ought not to interfere. This doctrine is the more reasonable in its application to plaintiffs at law than to defendants. The former always have it in their power, in a case like the present, to be relieved against surprise on the trial if any, by suffering a nonsuit. They are not compelled, as defendants are, to submit their case to the jury."

And in Willard v. Wetherbee.(1) Held, that when a party is surprised at a trial by the evidence upon a particular point, it is a good cause for motion to delay the trial, but where no such motion is made, it is not a good ground for a subsequent motion for a new trial.

A still stronger reason exists in this country for refusing a new trial to a plaintiff, upon the ground of surprise or mistake, where the practice has been introduced, of allowing a juror to be withdrawn and retaining the cause upon the calendar, instead of nonsuiting a plaintiff for a defect in his proof.(2) This rule has been held to apply also to criminal cases.(3) And although in England the plaintiff cannot be permitted to withdraw the record,(4) yet he has a right, upon his cause being called on, to request the swearing of the jury to be suspended until his witnesses have been called; and if they be absent, the counsel may withdraw the record, and thus avoid a nonsuit, which, if the jury had been first sworn, he must have submitted to.(5)

(1) 1 New-Hampshire Cases, 118.

(2) Gra. Prac. 252.

Et vide The People v. The New-York

Common Pleas, 8 Cowen, 127.

(3) United States v. Coolidge, 2 Gallison, 364. (4) 1 Chit. Arch. 273.

(5) Hopper v. Smith, 1 Moody & Malkin, 115.

The same rule applies, where counsel, from motives of prudence, omit evidence which, upon reflection they think if introduced, would have benefitted their cause.

As in Spong v. Hog.(1) The plaintiff had sued the defendant in trespass and in slander. The latter case was first called and tried, and the counsel declined giving any evidence that might look like a justification, and so swell the damages. The jury found a verdict of £100 damages. The trespass came on, and upon a full disclosure of the circumstances, there was a verdict for the defendant. The defendant then moved for a new trial in the slander suit, on the ground of evidence he had thought proper to suppress, and of excessive damages. But, Per De Grey, Ch. J.-"The only grounds upon which this rule can be supported are, either first, because the defendant might have given evidence in mitigation of damages, which then it appeared prudent to omit. This was never a ground for a new trial. Hardly a case happens where evidence of some kind or other, is not, in discretion, kept back. And it would be of fatal consequence to give the parties an opportunity of introducing new evidence when they see where the cause presses."

So, if the leading counsel at nisi prius, take one line of case contrary to the opinion of his junior counsel, the court will not permit the junior counsel to obtain a new trial upon the ground, that he was prepared with evidence to support another line of case, which his leader repudiated. Thus held in Pickering v. Dowson.(2) Action for deceit in the sale of a ship. The judge was of opinion upon the evidence, that the defendants were not liable in law, and directed a nonsuit. Motion for a rule nisi, to set aside the nonsuit, and for a new trial. The counsel on the argument took a different line of case from that adopted at the

(1) 2 W. Black. 802.

(2) 4 Taunt. 779.

"My brother Best,

trial, on which Gibbs, J. observed: who led the cause, used his discretion at the trial and did not go on this line of case. If the counsel who leads the cause takes one line, and the judge and jury decide on the line taken by the leader, the junior counsel also must confine himself to the line taken by the leader. This matter was stated, and I repeatedly called for evidence of this sort, and under the direction of the leader none such was produced."

For a client is bound by the conduct of his advocate. Hall v. Stothard.(1) Verdict for defendant, and motion to set it aside, and for a new trial. The action was brought for refusing to receive some linseed, which the plaintiff had contracted to deliver within fourteen days, the price being payable at the time of delivery. A portion of the linseed had been delivered, and the question was, whether the defendant was obliged to receive the remainder, an alteration having taken place in the price of the article. The action was resisted on the ground, that the defendant had applied for the delivery of the remainder of the linseed, and that the answer was, that plaintiff had not got it all to deliver. It was now observed in support of the motion for a new trial, that the plaintiff's clerks, to whom this application had been made, were in court, and the plaintiff's attorney wished them to be called, but that the counsel declined to pursue that course, and that ultimately the verdict passed for the defendant. Lord Ellenborough, Ch. J.-" The client must be bound by the conduct of his counsel, otherwise there would be no end to applications to the court for new trials. Where the parties wish one course to be adopted, and the counsel take another, the parties must, nevertheless, abide by the acts of their counsel, however contrary to their wishes;" and rule refused.(2)

(1) 2 Chitty's Rep. 267.

(2) Et vide, 20 Mart. Louis. Rep. 187.

So, in Gwilt v. Crawley.(1) The defendant's attorney knew a week before the cause was called on that it was set down for trial, but had neither delivered a brief nor examined his witnesses. When the cause was called on, no one appeared for the defendant, and a verdict was taken for the plaintiff. The court refused a new trial on any ground, though it was sworn that the defendant was taken by surprise, and had a good defence.(2)

And where an executor, being sued on a bond of his tes tator, of more than twenty years' standing, was advised by his counsel to rely on the presumption of payment arising from the length of time, and supposing such presumption a sufficient defence, neglected to fortify it by other testimony, which was in his power, in consequence of evidence given by one of the jurors in the jury-room, a verdict was found against him. He moved for a new trial on that ground, but was refused.(3)

The rule applies with equal force if the counsel acquiesce in the decisions of the court. He will not be permitted to urge objections upon an after thought, to disturb the verdict. In Robinson v. Cook, (4) in replevin on a distress for rent and tender before suit brought; but objected to, because the precise sum was not tendered, and the tender was coupled with a qualification deducting the propertytax, and so fatal. The plaintiff's counsel took no other distinction, and the judge held both objections valid, and directed a verdict for the defendant, in which the plaintiff's counsel acquiesced. Motion to set aside the verdict, upon the ground that the tender of a greater sum was a good tender, taking up the objections made at the trial, but abandoned. The court inclined to think both objections good,

(1) 8 Bingham, 144.

(3) Price v. Fuqua, 4 Munf. 68.

(2) Et vide, 10 Mod. 202. (4) 6 Taunt. 336.