case the queen against the corporation OF helston in Cornwall a point of law  suggest by the court on a trial if reject by the counsel in who favour it will  have then prevail be not a ground on which the court will grant a new trial  the question be whether if upon a trial a point in law be start by the judge  and the counsel do not take it up but insist upon other fact which be find  against they whereas have the counsel insist upon the matter of law stir by  the judge the verdict must have pass for they this be sufficient cause to move  for a new trial modern report er p Parker chief justice the grant of new trial  be of late original it begin about the year when the first new trial be grant  for excessive damage experience show that they be grantable as well for a  fault in the judge as for a fault in the jury in cause try at nisi prius  because a judge of nisi prius act rather in a ministerial than in a judicial  capacity and the ground and foundation of grant new trial when either the  judge or the jury be to blame be one and the same videlicet do justice to the  party the question in this case I take to be this whether we be so bind down  by form of law as that though we see a verdict give contrary to a point of law  which the judge himself take notice of and yet for want of the counsel do  their duty to their client be not insist upon we can grant a new trial when a  point of law arise whether the counsel insist or do not insist upon it the  judge be bind to direct the jury accord but yet if the support of this verdict  be of no more ill consequence than in point of cost and the party have another  remedy leave he then I be of opinion that the party ought to suffer for the  neglect of his modern report counsel but if the verdict bind and conclude the  right of the party then I think it hard that the party shall lose his right by  a mistake or slip of the counsel powys senior it will be of vast inconvenience  if the bare stir of a point at nisi prius and which for aught appear neither  the judge the counsel or the jury think upon more shall be a ground for grant  a new trial for it may be the reason why it be not insist upon by the counsel  be because they know the other side have evidence that will give it a full  answer by quite alter the fact what happen now accidental may hereafter happen  design matter may be slide in by the counsel and then drop only in order to  move for a new trial and it be better to suffer a particular inconvenience  than to open the way to a general mischief Eyre justice the mistake of the  judge or jury be a good cause of grant a new trial but I never yet hear that  the mistake of the counsel be so the counsel stand in the place of his client  and therefore if the counsel waive a point it be the same as if the client do  it himself powys junior if in a action of debt upon a bind a defendant who  have a good defence upon the merit shall by advice of counsel hazard his cause  upon a demurrer which be adjudge against he this mistake of counsel will not  be allow in chancery as a good cause of relief Parker chief justice there must  be no new trial and I so far assent to my brother that though a verdict shall  leave the party remediless yet if the counsel do not only not insist but  express waive it that then there ought to be no new trial