Edgerly v. Emerson
Superior Court of New Hampshire
Assumpsit, The cause had been twice tried aad a judgment rendered in favor of the plaintiff upon a review. And afterwards, a new trial was granted upon the petition of the defendant, and the cause again brought before the court at the last February term.
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Assumpsit, The cause had been twice tried aad a judgment rendered in favor of the plaintiff upon a review. And afterwards, a new trial was granted upon the petition of the defendant, and the cause again brought before the court at the last February term. And now the defendant moved for leave to file a set-off, and lie relied upon the statute of Dec. 16, 1824, sec. 2, as giving the court authority to order the amendment ; and also on the practice of the court, and cited the case of Bickford v, Daniels, 2 N. H. Rep. 71. On behalf of the plaintiff it was urged that there was no practice of the…
1Opinion of the Court
By the court.
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…
2Cases cited1 opinion
- Woart v. WinnickSuperior Court of New Hampshire · 1826
3Cited by1 opinion
- Merrill v. RussellSuperior Court of New Hampshire · 1841