60 N.H. 168 | N.H. | 1880
The action for a traveller's damages, under the highway act, is local. G. L., c. 75, s. 14. And this petition, being an incident of the action which the plaintiff proposes to bring, and within the reason of the law fixing the venue of the action, is, by implication, required to be brought in Strafford, the county in which the action must be entered.
"No writ, declaration, return, process, judgment, or other proceeding in the courts or course of justice shall be abated, quashed, or reversed, for any error or mistake, where the person or case may be rightly understood by the court," and amendments in matters of form and substance may be permitted in any action, in any stage of the proceedings. G. L., c. 226, ss. 8, 9. If the legislature had intended a writ, declaration, return, process, judgment, or other proceeding should be defeated by an error or mistake of venue, it is to be presumed they would have said "except an error or mistake of venue," or used other words distinctly manifesting their intention to make such an extraordinary exception to the general rule. So unjust an exception cannot be interpolated, by construction, in a statute so explicit and comprehensive in terms, and so equitable and beneficent in design. Berry v. Osborn,
If there are any questions of fact, of actual mistake, negligence, or injustice, or of any facts in the case being rightly understood by the court, such questions will be investigated and determined at the trial term, where the petition can be transferred to the county of Strafford, in which it should have been brought.
Case discharged.
All concurred.