Perley vs. Brown, 12 N.H. 493

Parker, C. J. An objection to an amendment, previously allowed by the court, cannot be taken at the trial of the cause, or on a hearing upon an auditor’s report. If the amendment be one within the discretion of the court, the propriety of its allowance cannot be reexamined, after the amendment is admitted, unless some question is then reserved for subsequent consideration. Whether there can be any relief, if the amendment allowed be for a different cause of action; and if so, what is the proper remedy, are questions we need not settle at this time.

But the amendment allowed in this case, discharging one of the defendants, was rightly admitted. The statute of July 4, 1834, enacts that in all actions where two or more defendants are joined, and it shall be made to appear on trial, by confession, or otherwise, that any of the defendants are not liable, and ought not to have been joined in the action, the suit shall not for that cause abate or be quashed, but the defendant or defendants so improperly joined shall be discharged with costs, and the action may thereafter proceed against the other defendant, or defendants, &c. 2 N. H. Laws 160.

As, under this statute, some of the defendants in an action ex contractu may be discharged on the trial of the action, when it appears in evidence, or by the admission of the plaintiff, that the action cannot be maintained against them ; a fortiori, the plaintiff ought to be permitted to make that admission before proceeding to trial, and this he does by moving to amend his writ so as to discharge one or more of the defendants. The party discharged by the amendment must, of course, in ordinary cases, be entitled to his costs.

He could not have them here, because it would have been a taxation of costs against himself. But we are of opinion that the fact that it was the name of the plaintiff which was inserted as one of the defendants, does not deprive the party of his right to make the amendment. The joinder was doubtless the result of a mistake respecting the necessary parties to the defence.

The count for money had and received was consistent with the original declaration, and was properly admitted, if the court were satisfied that the plaintiff would offer in evidence under it only some matter for the recovery of which the action was originally instituted. But an amendment, by the insertion of a general count, may open the case to the admission of matters in evidence, not originally intended to he comprehended in the suit, unless provision is made upon the subject at the time the amendment is admitted. This may be done by requiring the party to file a specification at the time.

The remaining question is. whether that part of the plaintiff’s claim, which arises out of the partnership transactions, was admissible, under the count for money had and received.

The statute of July 5, 1834, enacts, that whenever any copartner shall have or receive into his custody any goods, chattels, wares, merchandise, choses inaction, book accounts, or any personal property, or the proceeds thereof, in which any other copartner may have a joint interest, and shall refuse to account for or liquidate the same, on demand ; the person injured by the refusal may have an action of assump-sit, to recover the share due to him ; and that the action may be for money had and received, or otherwise. 2 N. H. Laws 150.

We are of opinion, that in order to bring a case within this statute, there must be a refusal to account for some specific property belonging to the partnership. A demand to settle the partnership business, and a refusal, may furnish good ground for sustaining a bill in equity : but this statute seems to have contemplated something more specific than that, as the foundation of an action at law. The defendant must have received some property belonging to the partnership, and have refused to account for that specific property, or the proceeds of it.

As there was here no demand or refusal to account for any particular property, but only a general refusal to settle the partnership, concerns, the plaintiff can only have judgment for tire sum of §34-25, found by the auditor to be due hint from the defendant on his personal account, with iuterest on that sum from the time when the report was returned. Judgment for the plaintiff.