Eaton v. Ogier

Mellen C. J.

delivered the opinion of the Court as follows. This is an action for a false return made by the defendant; in which return he stated that he had taken bail, when in fact he had not taken any. The defendant is defaulted; and the question is, what damages the plaintiff is entitled to recover.

The facts in Weld v. Bartlett, 10 Mass. 470, cited by the defendant’s counsel are precisely similar to those in the case at bar. There, nominal damages only were given, in consequence of proof admitted by the Judge who tried the cause, shewing the poverty of the debtor, and that he had not concealed himself. This opinion was sanctioned by the Court, and judgment was entered on the verdict. This case then is a decisive authority in favour of the defendant, as the plaintiff’s declaration now stands; and it is not overruled, or in any degree shaken by the case of Simmons v. Bradford, 15 Mass. 32. That case is different from this and Weld v. Bartlett.

Simmons demanded damages of Bradford on account of the default of one of his deputies in not delivering to him a bail bond, which in his return he stated he had taken. The action proceeded on the principle that the return was true; the declaration affirmed its truth, and the plaintiff claimed those advantages to which he would have been entitled, had such bail bond been delivered up to him for his use. In that case the Court would not permit the defendant to deny the truth of the return; but subjected him to the payment of the plaintiff’s demand; because the bail which he returned that he had taken, would have been liable to the samé amount. But in Weld v. Bartlett, and in the present case, the plaintiff proceeds on the disaffirmance of the officer’s doings, and expressly denies the truth of the return, and demands damages for its falsehood.

The plaintiff’s counsel, in order to bring this case within the principle of Simmons v. Bradford, has moved for leave to add a new count; charging the defendant with neglect in not delivering to him, on demand the bail bond which he has alleged *49in his return that he had taken 5 and this motion he makes in virtue of the agreement of the parties; This amendment is opposed by the defendant’s counsel on the ground that it is not within the rules of amendment; and the agreement extends to no other. On consideration of this motion; we are all satisfied that it cannot be sustained. The proposed count would be founded on a nezo cause of action; and such can never be admitted by way of amendment, unless by consent. If the motion stood on doubtful ground, we should not feel any disposition to extend the doctrine of amendments in favour of a plaintiff, who, from the facts before us, seems'to have discovered a disposition to avail himself of undue advantage. The amendment is not permitted ; and the plaintiff is entitled to none but nominal damages.