It appears, by the affidavit furnished in the case, that the plaintiff supposed that lot No. 62 enclosed the land on which the alleged trespass was committed, and that by mistake the abuttals were misdescribed; and, also, that evidence was offered tending to show that the alleged trespass was on ground outside of lot 62, and not enclosed in the abuttals set out in the writ. The counsel for the plaintiff supposed that the boundary called for in his writ was at H on the plan, instead of being at B, as it is now said to be. Now, assuming that the abuttals, actually set out in the writ, are made plain to the court, and that there is no pretence that any of the alleged trespasses were done within those abuttals, it seems clear that the person or case cannot be rightly understood by the court from the record, and therefore I do not think the amendment admissible under Gen. Stats., ch. 207, sec. 8.
The amendment is in a matter of substance, which by section 9 of the same statute may be made; and the question is, whether the foundation *Page 167 may be laid for the amendment by an affidavit showing what the plaintiff intended to describe, but by mistake did not. In Brackett v. Crooks,24 N.H. 173, a declaration for money had and received was amended by inserting a count on a promissory note, shown by affidavit to have been the foundation of the suit. In Tilton v. Parker, 4 N.H. 142, an amendment was allowed in a similar way on an affidavit. I remember, also, a case at nisi prius which the late Ch. J. PARKER allowed a declaration for money had and received to be amended, by adding a count for money paid, laid out, and expended, it being shown by affidavit that the cause of action intended to be described was money paid by the plaintiff as surety for the defendant.
It being, then, the established practice, that the identity of the cause of action introduced by the amendment with that intended to be described in the declaration may be shown by affidavit, and in the present case such identity being shown, it follows that the amendment should be admitted on such terms of indemnity as the circuit court should find to be reasonable.