¶1The opinion of the Court was delivered by
¶2The declaration in this case is framed under the statute 2 W. and M. c. 5, § 5, for distraining where no rent was due. (2 Stat. 531.)
¶3The proof did not sustain this allegation : and therefore a motion for non-suit might have prevailed if this objection had been made at the proper time, but it seems it was not started on the trial below, until the plaintiff’s attorney was near the close of his argument. This entitles it now to no favor, and if the case could be sustained under the verdict, as the record now stands, I should be disposed to do it. But the case made is so wholly foreign to the allegation, that we cannot permit the judgment for the plaintiff to be entered.
¶4As it, however, appears, he has a meritorious cause of action, for that the defendant distrained for more rent than was due : that he distrained more goods than enough to satify the rent, and that he distrained the corn growing and potatoes in the ground; we will not turn the plaintiff round, but order a new trial, with leave to the plaintiff to amend by adding a count or counts to cover the injuries which he has sustained.
¶5It is, therefore, ordered, that a new trial be granted : that the plaintiff have leave to amend his declaration by adding one or *44more counts, as he may choose, provided the said amendment be made within the nest sixty days : and the plaintiff shall post the usual thirty day rule requiring the defendant to plead to the same.
¶6New trial ordered.