Fowler v. Rogers

92 Vt. 56 | Vt. | 1917

Miles, J.

This case comes to this Court on exceptions of the defendant to the rulings and judgment of the Hartford Municipal Court, on the defendant’s motion in arrest of judgment.

We think and so hold that there is no merit in defendant’s exception. Case and trover could always be joined at common law and their joinder does not depend upon any statute. In Ayer v. Bartlett, 9 Pick. 156, 74 Am. Dec. 472, a declaration containing a count in trover was allowed to be amended by adding a count in case. It is stated in 23 Cyc., 391, “ Trover and case may be joined, trover being originally an action on the case. So when an action is originally trover, new counts in case may be added by way of amendment." In Moulton v. Witherell, 52 Me. 237, it is held that a declaration containing a count in case may be amended by adding a count in trover. There was no misjoinder in this case and the court in its discretion committed no error in allowing an amendment.

Judgment affirmed.