Little v. Morgan
Superior Court of New Hampshire
Assumpsit, to recover the amount of an award of referees, founded upon a submission of the parties. Upon the trial, it appeared that the submission was under seal. After the defendant had argued the case to the jury, he moved for a nonsuit, because the action should have been debt or covenant.
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Assumpsit, to recover the amount of an award of referees, founded upon a submission of the parties. Upon the trial, it appeared that the submission was under seal. After the defendant had argued the case to the jury, he moved for a nonsuit, because the action should have been debt or covenant. The plaintiff moved to amend the declaration and file a declaration in debt, which the court refused, and ordered a nonsuit; to which refusal and order the plaintiff excepted, And it was ordered that the questions arising in this case be reserved and assigned for the determination of this court.
1Opinion of the CourtWoods, C. J.
The nonsuit, in this case, was proper, provided the amendment asked for was not allowable. Assumpsit will not lie upon a sealed instrument. Foster v. Allanson, 2 D. & E. 482, Opinion of Buller, J.
*500The plaintiff proposed to amend, by striking out the count in asumpsit, and substituting a count in debt. The proposed amendment involves a change in the form of the action. Is such change allowable ? The rule upon this subject is concisely and clearly and well stated in the opinion of the court, by Parker, C. J., in Stevenson v. Mudgett, 10 N. H. Rep. 338. It is there said that “ an amendment is not…
2Cases cited2 opinions
- Stevenson v. MudgettSuperior Court of New Hampshire · 1839
- Butterfield v. HarvellSuperior Court of New Hampshire · 1825