6. When the plaintiff would be entitled to the benefit of the verdict in another form of action, the court will not turn him round, by setting aside the verdict, upon the ground that he has not framed his action with technical precision.(1)

Foxcroft v. Devonshire.(2) This matter came before the court upon a motion for a new trial, on the ground of a misdirection by the judge who tried the cause. It was an action of assumpsit, brought for moneys had and received by the defendants, to the use of the plaintiffs as assignees of a bankrupt. The defendants pleaded non assumpsit, and issue was joined thereon. The cause was tried before Mr. Justice Noel, and a verdict found for the plaintiffs, with which the judge declared himself satisfied. Lord Mansfield, in delivering the opinion of the court, on a motion to set aside the verdict, said, that the counsel for the plaintiff had urged as a preliminary point, that the defendants were guilty of a fraud in paying bills of exchange drawn upon them by the bankrupt.-" Upon this preliminary point only," observes his lordship, "it was left to the jury, and upon this point only they found their verdict. Upon hearing all the evidence they were of opinion, that the transaction was fraudulent on the part of the defendants, and they gave a verdict for the plaintiffs for the whole money, deducting only the commission due to the defendants, and the expenses of the sale of the goods. Though the ground of the verdict should be wrong, yet, if it clearly appeared to us now, that upon the whole no injustice had been done to the defendants, or if it clearly appeared to us now, that the plaintiffs, by another form of action, could recover all they have got by this verdict, we think the court ought not to grant a new trial."

The rule was recognised and illustrated in Aylett v

(1) Vide supra, p. 341.

(2) 2 Burr. 931.

Lowe.(1) Debt on mutuatus, for £200, and nil debet pleaded. On the trial, before De Grey, Ch. J., there was proof that the loan was for £100, and on motion for a new trial, the court refused to grant it, on the ground that, though the verdict was irregular, justice had been done.

And where the plaintiff has recovered a verdict for a sum of money, composed of several items, some of which he was not in strict law entitled to recover under the declaration in that form of action, but which he would be clearly entitled to recover by declaring in a different form, the court will not reduce the damages. Mayfield v Wadsley.(2) Indebitatus assumpsit. Plea, general issue, and verdict for plaintiff. A rule nisi was obtained for entering a nonsuit, on several grounds—that no evidence of part performance of the contract, by the defendant, had been shown; and that if even there were part performance, still this action. was not maintainable within the fourth section of the statute of frauds, the contract being subsidiary to a contract relating to the sale of an interest in land. On the latter point, Abbott, Ch. J., after disposing of the question of nonsuit, observes-"Supposing that the plaintiff cannot recover the residue on a declaration for crops bargained and sold, founded on the original contract, on the ground that it is void by the statute of frauds, yet I think he may recover on a declaration, stating that the defendant was indebted for the value of crops sown by the plaintiff on land in his possession, and which the defendant was allowed to take, and for which he promised to pay. If the plaintiff is, in strict law, entitled to recover part of his demand in this action, and in another form of action would be entitled to recover the residue, we ought not to reduce the damages in this case, for this would only have the effect

(1) 2 W. Blacks. 1221.

(2) 3 Barn. & Cres. 357.

of putting both parties to further expense, when the final result must be the same."(1)

So in Smith v. Elder.(2) Special action on the case, brought against the defendant for putting on board of an American vessel, bound from New-York to Scotland, goods which, by the laws of Great Britain, were prohibited from being imported into that country in foreign vessels, in consequence of which the plaintiff's vessel was seized, and the master compelled to pay a large sum of money to procure her release. There was a verdict for the plaintiff, and a motion for a new trial, one ground of which was, that as the plaintiff had declared in tort the evidence was not sufficient to prove it, inasmuch as an action for a misfeasance, or tort cannot be maintained for an act done merely in contravention of the revenue laws of Great Britain. Upon this point the court, per Van Ness, J., observes-" The defendant cannot avail herself of the first ground on a motion for a new trial. If the plaintiff has not disclosed in his declaration, a cause of action, cognizable by this court, that must be taken advantage of in another way. But I think, if this objection were permitted to be urged, on a motion for a new trial, that it comes too late."

So in Van Slyck v. Hogeboom.(3) Action of debt for the escape of one Van Alstyne, who had been surrendered by his bail, not in execution; the defendant was permitted to show the insolvency of Van Alstyne in mitigation. The jury found a verdict for the plaintiff, not for the debt, but for six cents damages and no more. Per Curiam." The action here was misconceived under the statute; debt for an escape lies only when the prisoner is in execution.-The action therefore for the escape, in this case, ought to have been an action upon the case, in which the measure of

(1) Vide 8 Mass. Rep. 336. 1 Ham. Ohio Rep. 168. (2) 3 Johns. Rep. 105.

(3) 6 Johns. Rep. 270.

damages is open to the investigation of the jury, and not in action of debt, in which the whole judgment is to be recovered, or nothing. But as the defendant was here permitted to avail himself of every defence, equally as if the action had been case, and not debt, and as only nominal damages have been recovered, it is unnecessary to set aside the verdict, merely for the sake of giving the defendant an opportunity of getting rid of the suit; for as the verdict stands, the defendant will recover costs."

So in Cogswell v. Brown,(1) cited above, where the objection was taken to the form of action, insisting it ought to have been trespass and not assumpsit. The court say substantial justice has been done, and the court will not turn the party round upon a formal objection.

And in Booden v. Ellis.(2) Trover for cord wood. The evidence clearly showed the action was misconceived; but the court said, that although the form of action adopted in this case was liable to many objections under the particular circumstances, they were all agreed, that when justice had been done in the form of an action, upon which the verdict had been found, it was not in their discretion, nor were they required by the agreement of the parties, to disturb the verdict upon a question of form only, and especially where, in adjusting the demand, the defendant had every advantage which he could have had, under any other form of action.(3)

(1) 1 Mass. Rep. 237.

(2) 7 Mass. Rep. 507. (3) Vide Livingston v. Harman, 9 Mart. Louis. Rep. 657, and Bush v. Critchfield, 4 Ham. Ohio Rep. 117.

CHAPTER XI.

VERDICT AGAINST EVIDENCE.

FACTS are peculiarly the province of the jury. Whether the proof offered be competent, is for the court-whether it be sufficient, when produced, is for the jury. Ad questionem legis, judices, ad questionem facti, juratores, respondent. But in weighing the testimony, the passions and prejudices of the jury are apt to mingle, or from ignorance or misapprehension, or mere obstinacy, they may arrive at a result, directly at variance with the truth of the testimony. The verdict ought to be, as the name implies, the very enunciation of truth. But it is not always so. It is frequently bottomed upon a superficial and partial examination of the testimony, and announces a result, directly repugnant to the evidence, as a whole. It is then a verdict against evidence, and calls for the interposition of the court. To permit it to remain, would be to sanction injustice; and to deny the court the power to correct the flagrant abuses of the jury, would be to bring the administration of justice into contempt, and render the boasted trial by jury, a great public evil. The courts have the power to correct, and are in the constant habit of exercising it, on this ground, limited only by their own discretion, guided by such precedents as experience has furnished. Although, owing to the ever varying aspect of cases, it is impossible to reduce the practice on this head to rules of universal application, yet we are not without some well settled principles, forming the outlines, and giving consistency to this