Inhabitants of Parkman v. Nutting

Appleton, C. J. The writ in this case contains counts for money had and received, and on an account annexed. The earliest item, in the account annexed, bears the date of Jan. 15, 1864. The specification in the writ is .that under the counts for money had and received, the plaintiifs claimed “ to prove and recover of said defendant the sum of sixteen thousand dollars, that amount of money delivered him on the 15th Jan., 1864, and since according to the account annexed.” The plaintiffs propose to amend so as to enable them to recover amounts received since Jan. 1, 1863. This is manifestly introducing a new cause of action. Under the writ as originally drawn, the defendant could not be held to account for sums received between Jan. 1, 1863, and Jan. 15, 1864. By the amendment he would be liable to account for all such sums. While the utmost liberality is allowed in the matter of amendments, the authorities are uniform that no new cause of action shall be introduced against the protestations of the defendant. The cause of action, as originally stated, was clearly and distinctly set forth. There was no [404] defect to be amended. The proposed amendment is not the correction of a defect in pleading, but the addition of a cause of action not set forth in the original declaration. The ruling, denying the amendment, was in accordance with the well-settled rules of law. So far as the evidence offered relates to the proposed amendment, it was properly excluded. Cutting, Kent, Walton, DioKerson, and Daneorth, JJ., concurred.