¶1concurred in opinion with the chief justice, that it was not necessary that the authority of the agent should be in writing. He went at the same time into the merits, for the purpose of shewing that no injustice had been done by the verdict, and that even if the court could indulge the defendant with a relaxation of the rule, he was not entitled to a new trial by the evidence.
¶2expressed the same opinion upon the point reserved; but he thought that inasmuch as the question was so reserved as to let in “ the circumstances of the case,” and upon those circumstances there was so little evidence of any contract at all, that manifest injustice had b'een done to the defendant. His Honour said. “ Had the *457point reserved been worded in the usual form, I think I should have been compelled to give my voice in favour of the" plaintiff. But the words “ under the circumstances of the case” have some meaning, and were inserted for some purpose. If it was not intended thereby to empower the court to investigate and decide on the merits, they were worse than nugatory; they tended to perplex. I am glad therefore that, if I have discovered during the course of the argument that injustice has been done, I am at liberty to give my voice for a new trial, although it has not been moved for within the four days. More than one of the court during the argument said that a motion ought to have been made; but on examination I rejoiced that the strong inclination of my mind, the justice of the case, was not fettered by form. Let it not be said that this relaxation of the rule is confined to criminal cases. The case of Smith v. Gilman, Stra. 995. Birt v. Barlow, Doug. 162. and the reasoning in other cases, shew that there is no distinction between civil and criminal cases, nor ought there to be any. I am therefore of opinion that there ought to be a new trial.”
¶3On the reserved point I have no doubt. Parol evidence may be given of an agreement to convey real estate, upon an action on the contract, so as to entitle to damages; this not being within the act of frauds and perjuries. Nor is there any thing in the expression “ circumstances of the case,” that will enable us to take them into view in considering the point reserved. But whether the circumstances of the case may be taken into view at this stage, a new trial not having been moved for within the four days, is another matter. It is a rule, that although the motion cannot be made after the four days, yet the court are not prevented by this rule from granting of themselves a new trial, if from a view of the evidence they see reason for it. But I am not prepared to say that this verdict is so palpably against the evidence as to make it clear that a new trial ought to he granted; and I concur in refusing it.
¶4New trial refused.