Dunning agt. Thomas. to state the same cause of action in different counts, with variations adapted to every possible state of facts which may be developed upon the trial. The theory of the Code is, that the party pleading knows, or should know, beforehand, what is the truth of his case, and that he should state the truth, and nothing but the truth, in his plealing. The statement of the case in different forms, for the purpose of guarding against a variance between the allegation and he proof, is no longer necessary. The court that tries the issue is now vested with power to allow an amendment of the pleadings whenever the ends of justice require it. The only restriction upon this power to amend upon the trial is, that the party shall not be allowed to change his pleading to such an extent as to make it present a new cause of action, or ground of defence. If, therefore, a party is able to state truly the substance of his case, when pleading,—(and no one will pretend that he ought to attempt to plead until he is thus able,)—he need not fear defeat on account of any variance between the allegations and proofs in any of the details of the case. He will, upon the trial, be allowed to adapt his pleading to his case as proved, upon such terms as may be just. The great characteristic of the system of pleading adopted in the Code is, that it is strictly enjoined upon the pleader that he shall state facts, and nothing but facts. It is as much a violation of this requirement to state several causes of action, when but one exists, as to state any other fictitious or imaginary case. The strict application of this principle may sometimes be inconvenient, but the inconvenience is far less than that which resulted from the practice of stating a single cause of action, in different forms, under the pretence that the plaintiff had, in fact, several distinct and different causes of action, to each of which the defendant was obliged to plead, and against each of which he was obliged to be prepared to defend himself. After the plaintiff has stated one cause of action, he ought not to be allowed to proceed to state a "further cause of action," when he really has none, any more than he should be permitted to make any other allegation which he knows to be false. (See Dunning agt. Thomas. Stockbridge Iron Co. agt. Mellen, 5 How. 439; Churchill agt. Churchill, 9 How. 552; Lackay agt. Vanderbilt, 10 How. 155.) The application of these principles is fatal to the complaint in this case. From the very nature of the case, it is impossible that the plaintiff can have four subsisting causes of action for the breach of a promise of marriage against the same defendant. It is true, that the defendant may have made all the promises set forth in the complaint. But if so, each promise, after the first, was but a modification of the contract which preceded it, and not a new and independent contract. It is like the case of a building contract, which, after the contract has been made, is modified from time to time by a change in the details of the work. No pleader, in an action upon such a contract, would think of counting upon the original agreement and the subsequent modifications as so many distinct and independent contracts. If at one time the defendant agreed to marry the plaintiff upon request, and, at another time, within a reasonable time, and again, when he should be released from a prior engagement, each of these promises is to be regarded as but a reiteration of the first, only varied in its terms. The last promise made and assented to by the plaintiff, would be the only subsisting contract between the parties, for the breach of which an action could be maintained. This complaint, therefore, must be set aside, with costs; but with liberty to the plaintiff to serve an amended complaint within twenty days after the notice of this decision. Taylor agt. Harlow and Pierson. SUPREME COURT THOMAS C. TAYLOR agt. DAVID R. HARLOW and SANFORD A. PIERSON. A party is not entitled to a new trial on the ground of surprise, because the opposite party and his counsel, on the trial, led him to believe that certain facts material to the defence would be admitted, or not disputed; and by reason thereof he did not introduce any evidence upon such facts. So long as the conduct of the opposite party and his counsel, in the matter, is free from fraud or positive stipulation, it forms no ground for a new trial, although it might have misled. It is a course the party, misled, volunteered to pursue. Under the Code, as it now reads, a judge at the circuit has no authority for sending a cause on a case to the general term before judgment. There are but two instances where a cause tried before a jury can be taken to the general term before judgment: First, Where exceptions are taken, the judge may, at the trial, direct them to be heard, in the first instance, at a general term, and judgment must there be given. Second, Where, upon the trial, the case presents only questions of law, the judge may direct a verdict subject to the opinion of the court at general term, where application for judgment must be made. In all other cases, judgment must be entered in conformity to the verdict at the circuit, on the direction of a single judge. (Code, § 264.) And motions for a new trial, on a case or exceptions, or otherwise, must, except as above stated, in the first instance, be heard and decided at the circuit, or special term. (Code, § 265. Saratoga Special Term, June, 1855. MOTION for a new trial. This action was brought to trial before à jury at a circuit court held in Saratoga county in June, 1852, and a verdict ordered for plaintiff, subject to the opinion of the court on a casecause to be argued and application for judgment to be made, in the first instance, at general term. A case was made and the cause argued before the general term, where judgment was pronounced for the plaintiff. The defendants, upon the case, and upon affidavits, now move for a new trial. GEORGE G. SCOTT, for motion. C. S. LESTER, opposed. Taylor agt. Harlow and Pierson. JAMES, Justice. In actions tried before a jury, motions for a new trial, when not made before the judge holding the circuit, must be heard upon a case or exceptions, except for irregularity, surprise, or newly-discovered evidence. (Code, §§ 264, 265.) This motion is founded upon both a case and affidavits. The motion is presented in two aspects. First, a new trial is asked on the ground of surprise; and, second, because the action is in such a position that the defendants cannot take it to the court of appeals. Under the first head, it is claimed that the conduct of the plaintiff and his counsel on the trial was such as to mislead the defendants in their defence, and prevent them from introducing evidence fully to prove and establish it, by inducing them to believe that certain facts, upon which the case ultimately turned, were not to be denied or disputed. Such circumstance, if true, affords no ground for a new trial. A party is not unfrequently misled, by the conduct of his opponent or counsel, during the progress of a cause; and so long as the same is free from fraud or positive stipulation, I am not aware of its ever having been made a ground for a new trial. In the case of Beekman agt. Bemus, (7 Cow. 29,) after the plaintiff had rested his cause, the defendant's counsel called a witness to the stand and had him sworn, but on an intimation from the court favorable to the defendant, the counsel forbore to examine the witness or introduce further testimony, although urged by his client to go on with the proofs. The jury found for the plaintiff. It was held that this was no ground for a new trial. No testimony had been excluded by the judge; and when the counsel consented to be satisfied with the impressions of the judge upon questions of fact, instead of the verdict of the jury, he assumed the responsibility of a decision in his favor, and disappointment in the result affords no ground for a new trial. So in this case: if the defendants chose to rest the proof of the facts of their case upon the conduct of the plaintiff or his counsel, instead of upon actual testimony, or open admission; or if, from plaintiff's conduct, the defendants were led to sup Taylor agt. Harlow and Pierson. pose the plaintiff had not, nor would not, discover the weak points in their case, an adverse result furnishes no ground for a new trial. The testimony was known, and the witness in court their course was taken after due deliberation; and the defendants must abide the consequence of their omission. Under the second head the defendants insist that a new trial should be granted, because the action is now in a position. where it cannot be taken to the court of appeals, that court having determined that it will not review exceptions taken to the decisions of this court made at general term; (2 Com. 98, 189; 4 Selden, 133;) and the defendants ask favorable consideration, as, they allege, they were misled in the practice, and prevented from taking exceptions on the trial, by the direction of the court in ordering a case to be made, and sending the cause to the general term for judgment. Under the Code, as it now reads, the judge at circuit has no warrant for sending a cause on a case to the general term before judgment. There are but two instances where a cause tried before a jury can be taken to the general term before judgment. In those instances the general term may pronounce judgment in the first instance, from which appeals may be taken to the court of appeals upon exceptions to such determination, (Code, §§ 265, 333, 11,) and this, too, without in any wise conflicting with the cases in 2 Com. and 4 Selden above cited. Those cases both arose before the amendments of 1851 and 1852 to the Code, and when there was no authority for entering judgment, in the first instance, upon an order of the general term. The instances where such judgment may now be entered are, first, "where exceptions are taken, the judge trying the cause may, at the trial, direct them to be heard, in the first instance, at a general term, and judgment in the meantime suspended; and in that case they must be there heard in the first instance, and judgment there given." (Code, § 265.) Second, "where, upon the trial, the case presents only questions of law, the judge may direct a verdict subject to the opinion of the court at a general term, and in that case the application for judgment |