Burleigh & Co. v. Merrill , 49 N.H. 35 ( 1869 )

Sargent, J.

In this case, the ad damnum was stated in the declaration, and shows affirmatively that the magistrate had jurisdiction of the cause. The Earl of Derby v. The Duke of Athol, 1 Vesey 202 ; Peacock v. Bell, 1 Saunders 73 ; Rix v. Liverpool, 4 Burr. 2244 ; The King v. Bagshaw, 7 T. R. 363 ; Hoit v. Molony, 2 N. H. 322 ; Wood v. Hill, 5 N. H. 229. The court, having such jurisdiction, could allow any amendment, either formal or substantial, which did not change the cause of action, or the form of action, which this amendment clearly does not do.

The person and the case may here be easily understood by the court from what there was originally contained in the declaration, to wit, that the plaintiff sought to recover something of the defendant upon the counts in this declaration, and that this sum thus sought to be recovered, was less than $13.33, and the statement of the particular sum can hardly be considered as of the substance of the declaration, since it does not require to be proved as alleged, and the statement of the sum is entirely immaterial since all that is claimed must be within the limits of $13.33. But even if it were a matter of substance, that would be no reason why it should not be amended under the provision of our statute, where there is clearly enough stated to give the court jurisdiction, and whore the cause can In clearly understood by the court, and -where there is sufficient i > amend by, and where neither the form nor the cause of action ai r changed by the amendment.

In such case the particular allegations of the declaration may be changed and others superadded in order to cure imperfections and mistakes in the manner of stating the plaintiffs’ case, and an amendment -which changes the date of the contract, or the sum to be paid or any particular of the matter to be performed, though in one sense it may change the form of the action, yet does not do so in the sense in which the rule is applied. But such amendments may be made. Stevenson v. Mudgett, 10 N. H. 340 ; Merrill v. Russell, 12 N. H. 75 ; Taylor v. Dustin, 43 N. H. 493 ; Bailey v. Smith, 43 N. H. 409 ; Rider v. Robbins, 13 Mass. 283.

The amendment was properly allowed

And there must he judgment for the plaintiff.