Gilman v. Cate, 56 N.H. 160

Gilman v. Cate

56 N.H. 160 | N.H. | 1875

Lead Opinion

FROM GRAFTON CIRCUIT COURT. When the plaintiff framed his declaration, he understood that the description therein used of the locus in quo carried the south half of lot 62 to the line running north 9 degrees east from the spruce tree; and he then, as now, expected to prove that the trespass complained of was committed upon that part of the territory then supposed to be described in the original count lying between the westerly line as he claims it, and the line 32 rods east, which the defendant claims is the true westerly line of that lot. The amended count, which he asks to insert in his writ, covers the same land that he supposed his first count covered. The trespass complained of in the new count is the same trespass intended to be set forth in the original count; and if the plaintiff shall succeed in proving it, it will be by the same witnesses and evidence by whom he expected to prove the trespass originally complained of. The identity of the cause of action is preserved, and no new cause of action seems to be introduced. *166

In Stevenson v. Mudgett, 10 N.H. 338, PARKER, C. J., said, — "The difficulty which sometimes exists in the application of the rule arises from the fact that almost all amendments change, to some extent, the cause of action, as originally stated. An amendment which changes the alleged date of a contract, or the sum to be paid, or any particular of the matter to be performed, or the time or manner of performance, changes in one sense the cause of action; but it is not in this sense that the rule is to be understood. Amendments of that character, so long as the identity of the matter upon which the action is founded is preserved, are admissible, the alteration being made not to enable the plaintiff to recover for another matter than that for which he originally brought his action, but to cure an imperfect or erroneous statement of the subject-matter upon which the action was in fact founded. So long as the form of action is not changed and the court can see that the identity of the cause of action is preserved, the particular allegations of the declaration may be changed, and others superadded in order to cure imperfections and mistakes in the manner of stating the plaintiff's case."

In Newell v. Horn, 47 N.H. 379, which was case for fraudulent representation in regard to the boundaries of lot 66 in Dummer, the plaintiff was allowed to amend his declaration by inserting two other pieces of land, one southerly and the other westerly of lot 66, and the amendment was held consistent with the original declaration.

General statutes, ch. 207, sec. 9, provide that "amendments in matter of substance may be permitted in any action, in any stage of the proceedings, upon such terms as the courts shall deem just and reasonable; but the rights of third persons shall not be affected thereby." The courts in this state have allowed amendments with great liberality. Many of the cases were apparently much more doubtful than the present. See Bailey v. Smith,43 N.H. 409; Stearns v. Wright, 50 N.H. 293. I think the amendment was properly allowed, and that the exceptions must be overruled.

Concurrence Opinion

It appears, by the affidavit furnished in the case, that the plaintiff supposed that lot No. 62 enclosed the land on which the alleged trespass was committed, and that by mistake the abuttals were misdescribed; and, also, that evidence was offered tending to show that the alleged trespass was on ground outside of lot 62, and not enclosed in the abuttals set out in the writ. The counsel for the plaintiff supposed that the boundary called for in his writ was at H on the plan, instead of being at B, as it is now said to be. Now, assuming that the abuttals, actually set out in the writ, are made plain to the court, and that there is no pretence that any of the alleged trespasses were done within those abuttals, it seems clear that the person or case cannot be rightly understood by the court from the record, and therefore I do not think the amendment admissible under Gen. Stats., ch. 207, sec. 8.

The amendment is in a matter of substance, which by section 9 of the same statute may be made; and the question is, whether the foundation *167 may be laid for the amendment by an affidavit showing what the plaintiff intended to describe, but by mistake did not. In Brackett v. Crooks,24 N.H. 173, a declaration for money had and received was amended by inserting a count on a promissory note, shown by affidavit to have been the foundation of the suit. In Tilton v. Parker, 4 N.H. 142, an amendment was allowed in a similar way on an affidavit. I remember, also, a case at nisi prius which the late Ch. J. PARKER allowed a declaration for money had and received to be amended, by adding a count for money paid, laid out, and expended, it being shown by affidavit that the cause of action intended to be described was money paid by the plaintiff as surety for the defendant.

It being, then, the established practice, that the identity of the cause of action introduced by the amendment with that intended to be described in the declaration may be shown by affidavit, and in the present case such identity being shown, it follows that the amendment should be admitted on such terms of indemnity as the circuit court should find to be reasonable.

Concurrence Opinion

I am of opinion that the amendment in this case was such as might legally be allowed under the statute and rule of court, as heretofore interpreted and applied.

Amendment allowed.