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Whitcomb v. Straw
June 1, 1880 - Opinion
Case records
Open case page| Date | Record Text | Type | Party | |
|---|---|---|---|---|
| June 1, 1880 | Whitcomb v. Straw Current page | Opinion | Supreme Court | Reporter |
Whitcomb v. Straw.
In an action of tort, tho plaintiff may amend his writ before trial by reducing the ad damnum, and, if this is reduced to $100, the action may be referred without the consent of tho parties.
Case for slander. On the plaintiff’s motion, he was permitted to amend his writ by reducing the ad damnum to $100, and the action was referred. The defendant excepted.
Barnard If Barnard, for the defendant.
Currier and Shirley, for the plaintiff.
Allen, J.
An amendment increasing the ad damnum in a writ may be allowed, sometimes even after verdict. Taylor v. Jones, 42 N. H. 25. The reasons for permitting the reduction of the ad damnum are still stronger. The defendant cannot be harmed by such an amendment. He has a smaller claim to meet. The declaration is single, upon a single tort, and the part stricken out cannot be made the subject of a future action, for there can be but one recovery. The plaintiff could waive a part of his claim, and at the trial demand a smaller sum than he sued for, and the defendant cannot object to the plaintiff’s making that demand of record, and becoming estopped from claiming more. The amount in controversy being reduced to $100, the case was properly referred.
Exceptions overruled.
Smith, J., did not sit: the others concurred.