Butterfield v. Harvell

3 N.H. 201

• Court: Superior Court of New Hampshire
• Decided: April 15, 1825
• Status: Published

Opinion

By the court.

Notwithstanding the liberal 'construction-given by courts, in modern times, to statutes of amendment, and the general provision of our own statute (1 N. H. Laws 99,) that courts may grant amendments, “ where the person “or ease may be rightly understood or intended it is a well settled principle, that no amendment of a declaration inconsistent with the nature of that declaration, or which changes the cause of action, comes within the provision of the statute, or can be admitted.

To an action of assumpsit upon an account annexed to the writ, John L. Thorndike vs. Thomas R. Sweat, the defendant pleaded the general issue, and gave notice of an account of goods sold to the plaintiff by way of set-off. At the trial of that action on review, Merrimack, August term, 1824, the defendant moved the court for leave to amend his set-off, by changing the charge of goods, as sold, to a charge of the same goods, as delivered to the plaintiff to sell and account for, and a charge of the proceeds of the sale thereof. But the court overruled the motion.

In the case at bar, the contract, as originally stated in the declaration, bound the defendant to due care, skill, and diligence in conducting the raft in question, but by no means amounted to an insurance against losses and accidents, not arising from his misconduct or neglect. The new count makes such insurance the 'gist of the action, and states a contract altogether different and distinct, from that before stated.

We are therefore of opinion, that the new count is not within the rules and principles of amendment, and must be rejected.