
    BELKNAP.
    Meredith Mechanic Association v. American Twist Drill Co. Same v. Same.
    Leave to filo an amendment changing the form of action, when applied for after verdict rendered for the defendant, may be refused on the ground that the application is not seasonably made, and that justice does not require a new trial.
    When a covenant of a lease has been broken by the lessor, and the benefit received by the lessee from his use of the premises is more than the damage resulting from the breach of covenant, the excess (not exceeding the stipulated rent) may be recovered in indebitatus assumpsit.
    
    Actions oe Debt, on a lease for rent of a mill. The first is for • rent payable in 1888, and the second for rent payable in 1889. In the first, after a verdict for the defendants, the plaintiffs moved to amend the declaration by adding a general count in assumpsit for use and occupation during the time for which rent was claimed in the original declaration. The same motion was made in the second action, which has not been tried.
    
      Barnard & Barnard, for the plaintiffs,
    cited Edgerton v. Page, 20 N. Y. 281, 284, Elliott v. Aiken, 45 N. H. 30, 35, Royce v. Guggenheim, 106 Mass. 201, 203, Sherman v. Williams, 113 Mass. 481, 485, Hayner v. Smith, 63 Ill. 430, Lynch v. Baldwin, 69 Ill. 210, and Morris v. Tillson, 81 Ill. 607.
    
      E. A. & C. B. Hibbard, Jewell & Stone, and S. W. Rollins, for the defendants, cited
    
      Leishman v. White, 1 Allen 489, Colburn v. Morrill, 117 Mass. 262, and Christopher v. Austin, 11 N. Y. 216.
   Doe, C. J.

In the first action, the amendment, if allowed, would be useless without a new trial. The motion to amend was not seasonably made, and it does not appear that justice requires-a new trial. The equitable principle of Britton v. Turner and Horn v. Batchelder (6 N. H. 481, 41 N. H. 86, Wadleigh v. Sutton, 6 N. H. 15, Elliot v. Heath, 14 N. H. 131, Clough v. Clough, 26 N. H. 24, 32, Davis v. Barrington, 30 N. H. 517, 528, Page v. Marsh, 36 N. H. 305, 308, Smith v. Newcastle, 48 N. H. 70, Blodgett v. Berlin Mills, 52 N. H. 215, 220, Ellsworth v. Brown, 55 N. H. 396) is applicable to a lessor’s claim for use and occupation. In the second action, the amendment, being seasonably applied for, should be allowed if justice requires it. Morgan v. Joyce, ante, p. 538.

Case discharged.

Allen, J., did not sit: the others concurred.  