Brackett et al. v. Crooks

Assumpsit for $200, money bad and received by tbe defendant to tbe plaintiffs5 use before tbe date of tbe writ. Tbe suit was commenced on tbe 18tb of September, 1851, by capias, and on tbe day of tbe date of tbe writ tbe body of the defendant was arrested and held to bail. There was no affidavit on tbe back of tbe writ. Tbe defendant moved to quash tbe writ. Tbe plaintiffs offered their affidavit, in which it was set forth that the suit was brought to recover tbe amount due upon a promissory note given by tbe defendant to tbe plaintiffs prior to tbe 1st of March, 1841, and that tbe note, not being at band at tbe time tbe writ was made, could not be specially declared on, and moved for leave to amend tbe declaration by adding a special count upon tbe note, or by striking out tbe count for money bad and received, and inserting such special count upon-the note in place thereof. And' thereupon it was ordered that tbe questions arising upon tbe foregoing case be reserved and assigned for tbe consideration of this court.

It does not appear by tbe declaration that tbe writ was “founded on a contract made after tbe 1st day of March, 1841.55 There is therefore no irregularity.

The declaration is sufficient^to recover the amount of a promissory note dated prior to March 1st, 1841.

The writ should be quashed because it runs against the body, and was served by arrest without the affidavit required by law, and when the writ does not disclose a cause of action authorizing an arrest, but on the contrary, so far as the cause of action is disclosed by the writ, it appeared to be a cause of action upon which an arrest is wholly unauthorized by law. Rev. Stat., chap. 185, § 8; Acts of June session, 1848, chap. 35; Bell’s N. H. Justice and Sheriff, p. 79; Cook v. Lothrop, 6 Shepl. 260; 5 U. S. Dig., p. 989.

This action was assumpsit for money had and received by the defendant to the use of the plaintiffs before the date of the writ. Proof of such indebtedness of the defendant, arising either before or after the 1st day of March, 1841, would well maintain the allegations in the declaration. Upon the face of the writ nothing appeared showing that it was improperly issued against the body of the defendant, nor was any such fact shown upon the pleading of the defendant, or upon proof furnished by him to the court. The provision of the statute upon which the defendant relies to sustain his motion to quash the writ, is § 8, chap. 185, Rev. Stat. It is there provided that “ No person shall be arrested upon any writ or execution founded on a contract made after the first day of March, one thousand eight hundred and forty-one, unless the plaintiff, or some person in his behalf, shall make an affidavit before a justice on the back of such writ,” &e. The statute then creates an exception to the general rule, which allows the arrest of the body upon writs issued upon civil contracts. And we are of the opinion that, where the exception is not shown by the declaration, if the defendant would avail himself of it, he must make it appear either upon his pleading or proof. It is not to be inferred from a declaration like the present, that the alleged cause of action was a contract entered into subsequently to March 1, 1841. Moreover, in the present case, the note intended to be embraced by the declaration is shown to have been given prior to that time; and the note was clearly competent proof to sustain the declaration. In point of fact, the action was founded upon a contract entered into prior to March 1, 1841, and the proof showing that fact is not in conflict with the declaration. "We see no sufficient ground upon which the motion of the defendant can be sustained, and it must therefore be denied. We think also that the plaintiffs may well be allowed to amend their declaration in the manner proposed. The addition of a special count upon the note intended to be covered by the general count, will not operate to introduce into the declaration a new cause of action, nor can it be regarded as a change of the cause of action originally declared upon. The new count proposed will have the effect only of a complete and perfect statement of the particulars of the contract upon which the action is founded. In Burnham v. Spooner, 10 N. H. Rep. 165, where the original count was upon a promissoiy note given for the price of certain goods, wares and merchandize, the plaintiffs were permitted to amend by filing a count for goods, wares and merchandize sold and delivered by the plaintiff to the defendant, for which the note was given. The court there-say, “ It (the note) is not, to be sure, on its face, a promise to pay for the goods, but the suit upon it is in effect a suit to recover the money for the goods. We are of the opinion, therefore, that.the ground of the action is substantially the same, within the meaning of the rule.” And numerous cases are found in the books where minors have been sued upon promissory notes, and upon objection being interposed to a recovery thereon, the plaintiff has been permitted to amend by inserting a count for goods sold, which constituted the consideration for the note. In principle we think those cases cannot be distinguished from the present, so far as the right to amend is concerned. In neither case is the ground of action changed,' or a new cause introduced, but the same cause is retained in a more appropriate count or form of declaration. Merrill v. Russell, 12 N. H. Rep. 74, and the cases there cited.