The opinion of the Court was drawn up by

The defendants were called upon to answer to the plaintiff in a plea of trespass on the case. The writ sets out an undertaking on the part of the defendants, and a promise to perform it, followed by an averment of a neglect to fulfil the same. The defendants pleaded, that they never promised, which was joined by the plaintiff; and upon this issue, a trial being had, a verdict was returned for the defendants. The plaintiff filed a motion, that the verdict be sei aside, because no issue was joined in the case before the same was committed to the jury, and because, he says, there has been a mis-trial therein.

By Rev. Stat. c. 115, <§> 9, “Nosummons, writ, declaration, plea, process, judgment, or other proceedings in courts of justice shall be abated, arrested or reversed for any kind of circumstantial errors or mistakes, when the person and case may be rightly understood by the Court, nor for want of form only and which by law might have been amended.” As the object of a new trial is to attain the real justice of the case, and for this purpose it depends upon the legal discretion of the Court, guided by the circumstances of each particular case, whether one shall be granted or not, it follows, that though there is a slip in the pleadings, if the merits of the case are with it, and essential justice has been done, a new trial will not be granted. Story’s Pleadings, 72.

*11Tf the plea tendered by the defendants had not been in the proper form, advantage could have been taken for that reason, before joining the issue. By adding the similiter, the objection may be considered as waived. The plaintiff has had all the benefit under this issue, which he could have had under any other, that would have been unobjectionable in its form; and he is precluded from availing himself of the supposed error which has been productive of no injury to him. If the plea is not in proper form, it may .be amended.

Motion overruled.