1789.
To the larger record, as it was called at the bar, to diftinguifh it from the other, a fecond objection has been made, to wit, the declaration does not fay, that the Defendant neglected to pay or deliver 100,000 weight of tobacco ; the declaration being on a penal bill. With regard to this point, I rather think that the verdict will not cure the objection. The cafe in Cro. Car. 515. Baynes v. Brighten, feems to be in point. Debt was brought for forty fhillings ; and the declaration was held till after verdict, becaufe the Plaintiff had not alledged, that the twenty fhillings were not due. I am induced to lay the more ftrefs on this authority, becaufe the principle of that cafe is recognized both in Douglass and Salkeld's reports. In Dougl. 657. by a recent and folemn decifion of the whole Court, it has been held, that if the indorfee does not prove at the trial a demand on the acceptor and refufal, even a verdict, in fuch cafe, will not help him. The well known cafe of omitting the Scienter is there admitted to be law. The cafe is exprefsly referred to as reported in Salk 662. The declaration was, that the Defendant kept a bull that ufed to run of men, but did not fay ʃcienter, &c. This was held till after verdict ; for the action does not lie, unlefs the mafter knows of this quality ; and the Court cannot intend it was proved at the trial, as the Plaintiff need not prove more than was in his declaration. So in the cafe of bar : the Court cannot intend that the Plaintiff proved at the trial, that the Defendant did not pay, or deliver, 100,000 weight of tobacco ; becaufe, not being alledged in the declaration , the Plaintiff was not under any neceffity of proving it.
With refpect to the other objections to the larger record, I entirely concur with my Brethren.
I concur, alfo, that there has been a mis-trial in the other caufe tried between the fame parties. Black. Rep. 85. is in point. Where the declaration is amended in a material point, a rule fhould be given to plead. If the Plaintiff has a right to amend, he is alfo bound at the fame time to give a rule to plead, that the Defendant may not be furprifed at the trial ; and, omitting to do fo, is error.
The Jury was fworn to try the precife and identical iffue joined by the pleadings ; and if that was afterward altered or changed by the Plaintiff, the verdict will not help it ; becaufe a verdict will not help that which was not in iʃʃue. Gilb. Hiʃt. and Pract. Com. Pleas. p 100.
The Court below had no power to difcharge the Jury after they were fworn, without the confent of both parties. It is true, that in 2 Stra. 1117, it appears, that a Jury was difmiffed after they were fworn, becaufe no iʃʃue was joined. But as there was an iffue joined in the caufe of Muʃʃer and Thompʃon, the Court below have acted erroneoufly, and contrary to the law in difcharging the Jury without the confent of both parties.
I think, upon the whole, that judgment fhould be reverfed in both caufes.
