Edgerly v. Emerson

We are of opinion that the set-off cannot be now received. A set-off is in the nature of a cross action, and a new ground of action cannot be introduced into a cause upon a review. Our practice extends only to the amendment of the forms of the proceedings, and never to the changing of the ground of action, in such a case.

And if the statute, upon which the defendant relies, can, in any case, authorize such an amendment, we think it cannot do it in an action pending when it was passed, because it is, in relation to such a cause, a retrospective law introducing a new rule of decision for the determination of an existing cause, and within the prohibition of the constitution. Woart v. Winnick, 3 N. H. Rep. 473.

The motion is therefore overruled.

There was a count for money had and received ; and the plaintiff had filed a specification before the former trials in which he stated that he should offer evidence upon that count, that the defendant received a certain sum of money upon an execution which issued in favor of the plaintiff, against a third person, on a judgment recovered in the year 1819. The plaintiff moved for leave to amend the specification by striking out 1819, and inserting 1809. It was admitted that on the former trials a judgment rendered in 1809, was offered in evidence in support of this part of the specification.

By the court. Our practice admits of this amendment. It does not substantially change the real ground of the action, but merely corrects a mistake in the form of the proceedings.