59 N.H. 363 | N.H. | 1879
It was not the design of the statute to subject the parties to the expense of two trials. The plaintiff, while travelling on a highway in Andover, was seriously injured, and was unavoidably prevented from filing a claim for damages against the town within the time prescribed by the statute. He introduced evidence tending to prove all the facts essential to his right to recover, and he intends in good faith to prosecute his claim and bring it to a trial. The defendants offered evidence tending to disprove their liability, and contended that leave should not be granted, unless it appeared, upon a full trial of the case, that the plaintiff was entitled to recover. The court, finding that the plaintiff was unavoidably prevented from filing his claim as required by the statute, and that justice manifestly required that he should have an opportunity to prosecute it, properly granted his petition without a full trial of the merits of the case. It may appear that a claimant ought to have a trial without a full trial of the merits (Holton v. Olcott,
The amendment was properly allowed. The petition is a proceeding in the course of justice. Stebbins v. Ins. Co.,
Exceptions overruled.
BINGHAM and ALLEN, JJ., did not sit: the others concurred.