Peaslee v. Dudley
63 N.H. 220
N.H.
1884
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The question presented is of no practical importance. Time spent in considering it would be wasted. If upon examination it should be found that the action in its present form cannot be maintained, the plaintiff would be permitted to amend by filing a count in assumpsit. The facts upon which the rights *Page 221 of the parties depend having been fully tried and determined, there is no occasion for a further trial. The plaintiff may amend by adding a count for money paid (McDuffee v. Railroad, 52 N.H. 459, Buckminster v. Wright,59 N.H. 153, and Merrill v. Perkins, 59 N.H. 343), and thereupon there will be

Judgment for the plaintiff.

STANLEY, J., did not sit: the others concurred.