Hurd v. Chesley

55 N.H. 21 | N.H. | 1874

Lead Opinion

Without inquiring into the sufficiency of the declaration as it stands, I am clearly of opinion that the case comes within the statute respecting amendments — Gen. Stats., ch. 207, sec. 8 — and that the amendment should have been allowed. In Melvin v. Smith, 12 N.H. 462, referred to by the defendants' counsel, the amendment was properly refused because it entirely changed the cause of action, transforming it from a suit to recover penalties for cutting trees, under the statute, to an action of trespass, quare clausum fregit, to recover the actual damage caused by the cutting, which was a very different thing. Here, the plaintiff sought by his original count to recover the actual damage caused by the defendants' act in killing his dog. By the amendment, he seeks the same thing and nothing more. The court can see that the identity of the cause of action is preserved, and that the defect is simply a defect in the statement of the plaintiff's right.

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Concurrence Opinion

If a dog with a collar around his neck were a different kind of animal from a dog without a collar, so that the amendment would describe a different subject-matter, perhaps it would be inadmissible. But a dog is neither more nor less than a dog, with or without a collar, and the amendment, instead of describing a different subject-matter, only avers a fact necessary to the maintenance of the action. It appears to me, therefore, that the amendment is clearly admissible.

SMITH, J. As the proposed amendment does not change the form of the action, and as the identity of the cause of action is preserved, the amendment should be allowed. Stevenson v. Mudgett, 10 N.H. 338; Wiggin v. Veasey, 43 N.H. 313; Bailey v. Smith, ib. 409.

Exceptions sustained.