The plaintiff, in this case, has, in fact, had no trial in the court below, his evidence having been excluded. We see, however, no objection to any thing done there by the court. It is a common practice, in this state, to give leave to change the endorser of a writ; but it rests in the discretion of the court to give, or refuse, leave to do this ; and we must presume, that the discretion of the court was properly exercised in this instance. If the plaintiff has failed to obtain justice, it has arisen from some mistake or misapprehension of the counsel. He had bound himself not to appeal, by an
We shall, on the whole, grant a new trial, but it must be upon terms that will place the parties in the same situation in which they would have been, had a nonsuit been entered.