Where a defendant, in an action brought in a Municipal Court, has been allowed to amend his answer by setting up matter which should have been declared on in set-off, and where on appeal to the Superior Court the defendant is allowed to file in that court a declaration in set-off, containing the same allegations that were contained in the amendment to his answer in the court below, this is merely a change of form; but even if there were a change of substance, by setting up new matter not included in the answer below, the Superior Court under Pub. Sts. c. 167, § 42 and Pub. Sts. c. 155, § 35, would have the same power to allow the amendment that it would have had if the case had been begun in that court.
Pub. Sts. c. 168, § 16, requiring a declaration in set-off to be filed with the answer, does not prohibit the court from allowing a declaration in set-off to be filed as an amendment at a later time.
HOLMES, C.J.
The amendment allowed in the Superior Court amounted only to a more formal claim of a set-off which was alleged and claimed in the Municipal Court. But even if it had been new matter, the Superior Court had the same power to allow it to be pleaded by amendment that it would have had if the case had begun there. Pub. Sts. c. 167, § 42. The provision in Pub. Sts. c. 155, § 35, is not intended to limit the power of the Superior Court to allow amendments in cases brought to it by appeal, and that in Pub. Sts. c. 168, § 16, requiring the declaration in set-off to be filed with the answer, does not prohibit the court from allowing it to be filed as an amendment at a later time. Butterfield v. Byron, 153 Mass. 517, 524.
Exceptions overruled.