The court declared that they were strongly inclined to treat *3the plaintiff’s motion with the utmost liberality, but were not disposed to make new precedents. They continued the matter under advisement for a few days.
Afterwards the court said they had considered both points fully, and were sorry that notwithstanding their personal feelings, they were obliged to refuse the motion. It appeared from the notes of the trial that the whole sum demanded was not recovered; and they could not possibly discriminate between what was found due in the action of covenant and on the agreements. It would therefore be an unwarrantable liberty to enter up the verdict in the manner required.
The observation of Lord Kenyon in 7 Term Rep., 133, forms a full answer to the remaining part of the motion. “ It would “be going too far to make the amendment required, without “ sending the cause to a new trial; as the defendant might “ have gone to trial, relying that no more than $2000 could be “recovered against him.”
Mr. Ingersoll then agreed to set aside the verdict, and that a new trial should be granted, on his obtaining leave to make the amendment in the declaration, which the court granted, without hesitation.