Little v. Morgan

31 N.H. 499 | Superior Court of New Hampshire | 1855

Woods, C. J.

The nonsuit, in this case, was proper, provided the amendment asked for was not allowable. Assumpsit will not lie upon a sealed instrument. Foster v. Allanson, 2 D. & E. 482, Opinion of Buller, J.

The plaintiff proposed to amend, by striking out the count in asumpsit, and substituting a count in debt. The proposed amendment involves a change in the form of the action. Is such change allowable ? The rule upon this subject is concisely and clearly and well stated in the opinion of the court, by Parker, C. J., in Stevenson v. Mudgett, 10 N. H. Rep. 338. It is there said that “ an amendment is not admissible which is inconsistent with the nature of the declaration, or which changes the cause of action and Butterfield v. Harvell, 3 N. H. Rep. 201, is cited in support of the rule stated. In the same case, it is further said that “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 declarations may be changed and others superadded, in order to cure imperfections and mistakes, in the manner of stating the plaintiff’s case.”

Now a declaration in assumpsit is inconsistent with the nature of a declaration in debt. Debt will lie, in many cases, for a cause of action, where assumpsit will not lie. To adopt debt, by way of amendment, for assumpsit, in a case where assumpsit will not lie, is, in effect, to introduce into a declaration and make effective, and to allow a recovery for a cause of action, not before legitimately introduced into the declaration. The grounds of the action requiring the amendment, of course, constituted no cause for which such a form of action as was supposed would afford a remedy. The various forms of action have alwrnys been regarded as substantial and material. A uniform practice has treated them as being so. It would be thought absurd to allow a declaration in assumpsit, either ignorantly or with knowledge and by design, adopted for the recovery of a tract of land, to be changed to a plea of land, upon objection properly taken to the declaration. Yet, if a change in the form of action be allowable, it would be so in that case. The proposition, in the present case, to alter the form of the action, we think, was properly refused, and there must be

Judgment on the nonsuit.