Woods, J.
The plaintiff having declared upon a judgment of the court of common pleas for the county of M'errimaclc, rendered at the March term of that court in 1843, obtained leave to amend his declaration by substituting for that judgment, a judgment of the court of common pleas for the county of Sullivan rendered at a term of that court bol den in April 1843. The parties to the judgment declared on are the same with the parties to the judgment proposed to be substituted by the amendment; and the sum for which the two judgments are described as having been rendered, is the same sum. The question is whether such an amendment is admissible within the rules of practice in such cases.
In Stevenson v. Mudgett, 10 N. H. 340, the court say, that “ an amendment is not admissible which is inconsistent with the nature of the declaration, or which changes the cause of action. This is the rule laid down in Butterfield v. Harvell, 3 N. H. 201, and which has since been recognized as the true principle.” The same principle has been adopted as a guide elsewhere. Ebersoll v. King, 5 Binney 52 ; Eaton v. Ogier, 2 Greenl. 46 ; Haynes v. Morgan, 3 Mass. 208.
But while courts have endeavored to adhere to that rule, there has been an acknowledged difficulty in making a satisfactory application of it, since, as is remarked in Stevenson v. Mudgett, referred to, “almost all amendments change to some extent the cause of action as originally stated.”
Nor example, it has been held in Massachusetts that in an action for goods sold and delivered, the plaintiff' could not amend by adding a count upon the note given for the price. Vancleef v. Therasson, 3 Pick. 12. But we have held that in an action upon a note, the plaintiff' might amend by adding a count for the goods sold for which the note had been given. Burnham v. Spooner, 10 N. H. 165. In one of these cases, two causes of action were supposed [572]*572to be set forth in the different counts, while in the other case, the two counts were held to be but different forms of stating the same cause of action.
In Moore v. Ross, 7 N. H. 528, the declaration was on an account annexed for work and labor, and rye and wheat furnished for seed. The amended count was admitted, by which the plaintiff declared specially, that in consideration that he had permitted the defendant to take and appropriate to his own use a crop of rye, &c., the defendant promised to pay so much as it was worth. S. C. 11 N. H. 547.
In Elliott v. Abbott, 12 N. H. 549, the declaration was on a note made by the defendant payable to a third party and indorsed. An amendment was permitted counting upon a note payable to the plaintiff. These cases are put to illustrate in some degree the latitude to which the court has gone in the application of the rule. And many others might be cited to the same purpose.
The principle which governs them all is, that if the plaintiff has misstated his cause of action, so that his evidence will not support his count, he may restate the same, if in so doing he does not abandon the material and meritorious cause embraced in his original count. But the record itself must furnish evidence that the two counts are for the same thing, and that the debt, duty, or gravamen, stated in the first, is identical with that which is the subject of the amended count. That the same thing was aimed at in both. Therefore where the person who drew the declaration by mistake described the wrong note, the plaintiff can not add a count upon the one that should have been declared on, but- for the error of the attorney or scrivener. F. & M. Bank v. Israel, 6 S. & R. 294.
In the present case the declaration is upon a judgment. The only general plea is ml tiel record, and that puts in issue the verity of the record itself, and no evidence but that is admitted. The parties are estopped by it, and can [573]*573go into no inquiry as to the cause of action on which the judgment is founded, nor into the facts which gave it inception. These do not in any sense form the ground upon which an action on the judgment is based. When an action is commenced upon a judgment, the judgment is the cause of action, and nothing else is. It is necessary .upon the plea which raises the question of the existence of the judgment, simply to inquire whether that which is described by the writ is proved by the record produced. If so, the cause of action is proved; if not, it fails.
In the present case the declaration describes a judgment of the court of common pleas for the county of Merrimack, rendered at the March term in 1843. The amendment describes a judgment of the court of common pleas for the county of Sullivan, rendered at the April term 1843. It is perfectly plain that the two counts do not describe the same judgment, nor is there any ground for maintaining that the first was a mere misdescription of the judgment correctly described in the second.
It is nothing to the purpose that an attempt was made to set out in the original count a judgment founded upon the same merits with those which laid the ground for the judgment described in the amendment; for these do not constitute the cause of action, and can not be inquired into in an action upon the judgment. The record does not afford any ground for presuming that the intention ot the plaintiff was to declare upon a judgment of the court for Sullivan county rendered at the April term. He -described a judgment of another court.
The amendment can not therefore, in accordance with the rule which has always prevailed, be justified.
But there is another insuperable impediment to the maintenance of the action. It is for the recovery of damages awarded by the joint board of road commissioners for the counties of Merrimack and Sullivan, for land of the plaintiff taken for a highway. The powers of the [574]*574commissioners and the legal effect of their proceedings are defined in chap. 506 of the laws of November session 1840, which provides that their report, when accepted by the court of common pleas, shall be of the same force and validity for the county in which it is made, with a report so made by a committee of the court aud accepted. The joint board shall make a report of their doings in each county to the court of common pleas for such county, &c.
It is perfectly plain that all the force and validity of the report of the road commissioners are dependent upon- the event of its being accepted by the court; and that they are derived from the act of the court. This acceptance is a judicial act. A motion for that purpose is- open to contestation, and may be defeated by various causes. Irregularities in the proceedings of the commissioners, the want of sufficient notice to the towns or either of them, might be shown to afford occasion to recommit the report or to set it wholly aside. The laying out of the road is the act of the court; and the parties have an undoubted right to be heard on the question arising upon the return of the commissioners’ report.
"When the plaintiff’s action was commenced, therefore, the report not haying been accepted by the court, no road had been laid out and established, and no right had accrued to him to recover the damages allowed by the road commissioners.
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Woods, J.
The plaintiff having declared upon a judgment of the court of common pleas for the county of M'errimaclc, rendered at the March term of that court in 1843, obtained leave to amend his declaration by substituting for that judgment, a judgment of the court of common pleas for the county of Sullivan rendered at a term of that court bol den in April 1843. The parties to the judgment declared on are the same with the parties to the judgment proposed to be substituted by the amendment; and the sum for which the two judgments are described as having been rendered, is the same sum. The question is whether such an amendment is admissible within the rules of practice in such cases.
In Stevenson v. Mudgett, 10 N. H. 340, the court say, that “ an amendment is not admissible which is inconsistent with the nature of the declaration, or which changes the cause of action. This is the rule laid down in Butterfield v. Harvell, 3 N. H. 201, and which has since been recognized as the true principle.” The same principle has been adopted as a guide elsewhere. Ebersoll v. King, 5 Binney 52 ; Eaton v. Ogier, 2 Greenl. 46 ; Haynes v. Morgan, 3 Mass. 208.
But while courts have endeavored to adhere to that rule, there has been an acknowledged difficulty in making a satisfactory application of it, since, as is remarked in Stevenson v. Mudgett, referred to, “almost all amendments change to some extent the cause of action as originally stated.”
Nor example, it has been held in Massachusetts that in an action for goods sold and delivered, the plaintiff' could not amend by adding a count upon the note given for the price. Vancleef v. Therasson, 3 Pick. 12. But we have held that in an action upon a note, the plaintiff' might amend by adding a count for the goods sold for which the note had been given. Burnham v. Spooner, 10 N. H. 165. In one of these cases, two causes of action were supposed [572]*572to be set forth in the different counts, while in the other case, the two counts were held to be but different forms of stating the same cause of action.
In Moore v. Ross, 7 N. H. 528, the declaration was on an account annexed for work and labor, and rye and wheat furnished for seed. The amended count was admitted, by which the plaintiff declared specially, that in consideration that he had permitted the defendant to take and appropriate to his own use a crop of rye, &c., the defendant promised to pay so much as it was worth. S. C. 11 N. H. 547.
In Elliott v. Abbott, 12 N. H. 549, the declaration was on a note made by the defendant payable to a third party and indorsed. An amendment was permitted counting upon a note payable to the plaintiff. These cases are put to illustrate in some degree the latitude to which the court has gone in the application of the rule. And many others might be cited to the same purpose.
The principle which governs them all is, that if the plaintiff has misstated his cause of action, so that his evidence will not support his count, he may restate the same, if in so doing he does not abandon the material and meritorious cause embraced in his original count. But the record itself must furnish evidence that the two counts are for the same thing, and that the debt, duty, or gravamen, stated in the first, is identical with that which is the subject of the amended count. That the same thing was aimed at in both. Therefore where the person who drew the declaration by mistake described the wrong note, the plaintiff can not add a count upon the one that should have been declared on, but- for the error of the attorney or scrivener. F. & M. Bank v. Israel, 6 S. & R. 294.
In the present case the declaration is upon a judgment. The only general plea is ml tiel record, and that puts in issue the verity of the record itself, and no evidence but that is admitted. The parties are estopped by it, and can [573]*573go into no inquiry as to the cause of action on which the judgment is founded, nor into the facts which gave it inception. These do not in any sense form the ground upon which an action on the judgment is based. When an action is commenced upon a judgment, the judgment is the cause of action, and nothing else is. It is necessary .upon the plea which raises the question of the existence of the judgment, simply to inquire whether that which is described by the writ is proved by the record produced. If so, the cause of action is proved; if not, it fails.
In the present case the declaration describes a judgment of the court of common pleas for the county of Merrimack, rendered at the March term in 1843. The amendment describes a judgment of the court of common pleas for the county of Sullivan, rendered at the April term 1843. It is perfectly plain that the two counts do not describe the same judgment, nor is there any ground for maintaining that the first was a mere misdescription of the judgment correctly described in the second.
It is nothing to the purpose that an attempt was made to set out in the original count a judgment founded upon the same merits with those which laid the ground for the judgment described in the amendment; for these do not constitute the cause of action, and can not be inquired into in an action upon the judgment. The record does not afford any ground for presuming that the intention ot the plaintiff was to declare upon a judgment of the court for Sullivan county rendered at the April term. He -described a judgment of another court.
The amendment can not therefore, in accordance with the rule which has always prevailed, be justified.
But there is another insuperable impediment to the maintenance of the action. It is for the recovery of damages awarded by the joint board of road commissioners for the counties of Merrimack and Sullivan, for land of the plaintiff taken for a highway. The powers of the [574]*574commissioners and the legal effect of their proceedings are defined in chap. 506 of the laws of November session 1840, which provides that their report, when accepted by the court of common pleas, shall be of the same force and validity for the county in which it is made, with a report so made by a committee of the court aud accepted. The joint board shall make a report of their doings in each county to the court of common pleas for such county, &c.
It is perfectly plain that all the force and validity of the report of the road commissioners are dependent upon- the event of its being accepted by the court; and that they are derived from the act of the court. This acceptance is a judicial act. A motion for that purpose is- open to contestation, and may be defeated by various causes. Irregularities in the proceedings of the commissioners, the want of sufficient notice to the towns or either of them, might be shown to afford occasion to recommit the report or to set it wholly aside. The laying out of the road is the act of the court; and the parties have an undoubted right to be heard on the question arising upon the return of the commissioners’ report.
"When the plaintiff’s action was commenced, therefore, the report not haying been accepted by the court, no road had been laid out and established, and no right had accrued to him to recover the damages allowed by the road commissioners.
Whether this is one of those cases in which the court to save the rights of parties, would order a judgment to be entered as of a preceding term, upon a hearing of the parties, and on being satisfied that a judgment ought to be rendered, it is not necessary to decide. The plaintiff commenced his action before any rights to the thing claimed had been established ; and it is not apparent that he might not secure all that justly belongs to him by commencing his action hereafter, and when his cause of action shall have so far matured, as not to require the [575]*575extraordinary interposition of the court in entering the judgment as of a preceding term.
Bat such a course has not been pursued. On the contrary the parties have relied upon an order of a judge out of term, as authority to the clerk to enter the judgment. If the entry of such a judgment were a mere matter of form, this might be sufficient; or the clerk might proceed without such an order, and the apprehension has been that such was the nature of the exigency.
But it has been sufficiently shown that a judgment or decree of the court of common pleas accepting a report of the road commissioners, is not of that nature. It is a strictly judicial act. A motion for the purpose is open to contestation, and the parties have the right to be heard. It is therefore an act that can be done only by the court; and there is no court of common law with judicial power except in term.
Judgment for the defendant.