Riley v. Emerson

5 N.H. 531

• Court: Superior Court of New Hampshire
• Decided: November 15, 1831
• Status: Published

Opinion

By the court.

The plaintiff, in this case, has, in fact, had no trial in the court below, his evidence having been excluded. We see, however, no objection to any thing done there by the court. It is a common practice, in this state, to give leave to change the endorser of a writ; but it rests in the discretion of the court to give, or refuse, leave to do this ; and we must presume, that the discretion of the court was properly exercised in this instance. If the plaintiff has failed to obtain justice, it has arisen from some mistake or misapprehension of the counsel. He had bound himself not to appeal, by an agreement filed in the case. When, therefore, he found himself without evidence, he ought, in order to save his rights, to have become nonsuit, and then by a new suit, he might have obtained justice. But by some strange misapprehension, a verdict was suffered to pass against him; and whatever may be the real justice of his claim, he is now without redress, unless we grant him a new trial.

We shall, on the whole, grant a new trial, but it must be upon terms that will place the parties in the same situation in which they would have been, had a nonsuit been entered.