4. The Declaration. when it is served, a new declaration cannot be inserted by way of amendment; but a declaration so defective that it would exhibit no cause of action, may be cured by amendment, without introducing any new cause of action. An amendment changing the form of action, for example from debt to case, is not authorised."

When the writ contains no declaration,

2

What is a new cause of
An amendment which

The general rule may be stated to be, that amendments are uniformly allowed, when they do not introduce a new cause of action, and when they are required by the justice of the case. action is frequently a question of difficulty. changes the alleged date of a contract, or the sum to be paid, or any particular of the matter to be performed, or the time or manner of performance, changes, in one sense, the form of action; but it is not in this sense that the rule is to be understood. Amendments of that character, so long as the identity of the matter upon which the action is founded is preserved, are admissible; the alteration being not to enable the plaintiff to recover for another matter than that for which he originally brought his action, but to cure an erroneous or imperfect statement of the subject matter, upon which the action was in fact founded. When the writ contained but one count, and that upon an agreement to become insurer of a vessel, by a policy to be made, it may be amended by inserting a new count upon a policy as actually made. So a negotiable note, given for a balance of an account, does not constitute a different cause of action from the account itself." When an action was brought for goods sold and delivered, and on a special agreement as to the mode of payment, the plaintiff was allowed to amend by inserting a count upon a warranty of the genuineness of certain paper received in payment.

5. Pleadings. Under this head, in our practice, may be classed pleas, bills of particulars, set-off, tender, offers to be defaulted, and any thing put into the case by either party which goes to make up the issue. In all these matters the discretionary power of the magistrate should be exercised with great care, and with great hesitation, particularly after the parties have once gone to trial on the issue joined. It

119 Pick. 376-2 Pick. 420.

225 Maine, 249..
328 Maine, 215.
*Colby's Pr. 170.

$10 N. H. 341.

Loring and Proctor-26 Maine, 18. 73 Met. 273.

81 Met 547.

has been held in New York that pleas in abatement, being dilatory pleas, are not amendable.'

6. In some other matters. The certificate of justices of the peace that they administered the oath prescribed by law to a poor debtor committed on execution, may be amended even after action brought upon the debtor's bond for the liberty of the jail limits. An error in taxation of costs, by omitting an item, may be amended, after execution issued, if there be any thing to amend by."

775

Records. An apparent error on the face of a record may be amended by another part of the same record; and all circumstantial errors, clerical mistakes, and defects in form may be amended.* Certificates of oaths may be amended by adding the words "justice of the peace.' The justices, administering the oath to a poor debtor, may amend their certificate, by adding, in accordance with the truth, the mode in which they were selected. The date of a certificate of an oath taken by a magistrate may be amended, if erroneous.

7

Of the Terms, Time, and Form of Amendments. No restrictions are imposed on a magistrate as to the time when or the terms upon which he may grant motions to amend. Indeed, the whole subject of amendments is left very much to his discretion. The rule upon which custom seems to have settled down is, that when the amendment prayed for is in any thing material, some terms, either costs, part costs, or a continuance, shall be imposed.

Amendments are granted on motion, and not as a matter of course. The motion should be made in writing, and filed in the case, and if granted, an order is made to that effect. Nothing else is necessary. The magistrate should be particularly careful not to alter any of the papers. This is an alteration, not an amendment. The motion, if properly drawn, will show exactly the change prayed for, and the order of the magistrate will decree that change. This constitutes the amend

ment.

IX. BILLS OF PARTICULARS.

A bill of particulars is a statement of the plaintiff's cause of action, and when filed, becomes, in fact, a part of the declaration, and the

15 Wend. 72.

24 Met. 455.

36 Green. 415.

4 Howe's Pr. 382.

56 Green.106.
626 Maine, 444.
720 Maine, 301.

plaintiff is bound by it. It may, and should be ordered, when the plaintiff fails to set forth his cause of action with sufficient distinctness for the defendant to know what he is summoned to answer to. In actions of assumpsit on notes of hand and book accounts, nothing is more common than for the plaintiff to declare in the general counts alone, which give the defendant no intimation of the cause of action. The magistrate may require a bill of particulars on motion of the defendant, and refuse to proceed with the cause until the plaintiff complies with the order.1

After the bill of particulars is furnished, the plaintiff cannot, upon trial, contradict it, or give evidence of any demand not contained it, unless specially declared or on some count in the declaration. A bill of particulars is, however, amendable, in the discretion of the court."

X. SET-OFF.

When there are mutual debts or demands between the plaintiff and defendant in any action, one demand may be set-off against the other.*

The defendant shall file a statement of his demand on the return day of the writ, notice of which should be entered by the justice on his docket, under the action."

The demand of the defendant shall be as certain in substance, as would be required in a declaration, and the court may allow amendments thereof, when deemed proper.

No demand can be set off unless it is founded upon a judgment or contract; but the contract may be either expressed or implied.'

No demands can be set-off unless for the price of real or personal estate sold, or for money paid, money had and received, or for services done, or unless it be for a sum liquidated, or one that can be ascertained by calculation."

No demand can be set-off, not originally payable to the defendant in his own right; unless it has been assigned to the defendant, with notice to the plaintiff of the assignment before the action was commenced, or the plaintiff shall have at any time previously agreed to receive it

in payment, or part payment of his demand, or to pay the same to the defendant.'

If the demand set-off is founded on a bond or other contract having a penalty, no more shall be set-off than the sum equitably due.2

The set-off is allowed in all actions founded on demands, which could themselves be the subject of set-off according to law, and in no others.3

If there are several plaintiffs, the demand set-off shall be due from them jointly; and if there are several defendants, the demand set-off shall be due to them jointly; but when the person, with whom a contract is made, has a dormant partner, and a suit is brought on such contract, by or against the partners jointly, any debt due to or from the person, with whom the contract was made, may be set-off in like manner, as if such dormant partner had not been joined in the suit.^

If the demand, in which the action is brought, has been assigned, and the defendant had notice of the assignment, he is not allowed to set-off any demand that he may have acquired against the original

creditor after such notice."

When an action is brought by one person in trust, or for the use of another, the defendant may set-off any demand against the person, for whose use or benefit the action is brought; and in actions by executors and administrators, demands againt the testators or intestates, which belonged to the defendant at the time of their death, may be set-off in the same manner as if the action had been brought by the deceased. In this latter case, if a balance is found due the defendant, the judgment therefor shall be in the same form, and have the same effect, as if the suit had been originally commenced by the defendant, unless the estate of the deceased is insolvent, in which case no judgment shall be rendered for the defendant, but the statute provides that the same shall be certified by the clerk of the court; (and in actions before a magistrate, he would not refuse to give his certificate in like manner) and the same shall be laid before the commissioners on such estate, as other claims of creditors are."

In actions against executors and administrators, and trustees and others in their representative character, the defendants may set-off demands belonging to their testators or intestates, or those whom they

1R S. ch. 115, secs. 29, 30.

2Ib.. sec. 31.

"Ib. sec. 32.

4 Ib. secs. 33, 34.

Ib. sec. 35.

R. S. ch. 115, secs. 36, 37, 38, 39.

represent, in the same manner as the persons represented would have been entitled to set-off the same, in an action against themselves.'

In actions brought by or against executors, administrators or trustees, or others in their representative character, no demand can be set-off, that is due to or from such executors, &c., in their own right.2

All cases of set-off may be tried upon the issue joined, without any further plea; and in all actions, except assumpsit, when an issue to the country is not otherwise joined, the defendant may plead that he does not owe the sum demanded by the plaintiff, which shall be deemed a good plea or general issue, for the purpose of trying the merits of the cause; and the plaintiff shall be entitled to every ground of defence against such set-off, of which he might have availed himself by any form of pleading, in an action brought against him on the same demand."

The statute limiting personal actions, if applicable to the set-off, shall be applied in the same manner, as if an action thereon had been commenced at the time when the plaintiff's action was commenced.*

If no balance is found due to either party, judgment is to be entered accordingly, without costs to either party; if a balance is found due the plaintiff, judgment is to be rendered therefor. When a balance is found due from the plaintiff, judgment shall be rendered therefor in favor of the defendant, with costs; but no judgment shall be rendered against the plaintiff, when the demand for which the action was brought had been assigned before the commencement of the action, nor for any balance due from any other person than the plaintiff; and in no case shall judgment be rendered for the defendant for more than twenty dollars, exclusive of costs."

After a demand has been filed in set-off, the plaintiff shall not be allowed to discontinue his action, unless by consent of the defendant."

If the defendant is deprived of the benefit of the set-off, by the nonsuit, or other act of the plaintiff, he may commence a new action thereon within six months from the time of the determination of the original suit, notwithstanding his demand would be barred by the provisions of the statute of limitations."

1R. S. ch. 115, sec. 40.

2Ib. sec. 41.

Ib. secs. 42, 43.

*R. S. ch. 115, sec. 44.

Ib. secs. 45, 46, 47.

Ib. sec. 48.

TR. S. ch. 146, sec. 26.