Melvin v. Smith

12 N.H. 462 | Superior Court of New Hampshire | 1841

PaRker, C. J.

The amendment in this case was not admissible. It changed the cause of action. The gist of the declaration, as originally drawn, was that the defendant, by reason of the cutting of divers trees upon the plaintiff’s land, had become liable to certain penalties, which the plaintiff claimed a right to recover. The action was in the nature of an action of debt, although, in conformity with the provisions of the statute, it was denominated a plea of trespass. The plaintiff did not ask for any damages for the breaking and entering of his close.

But by the declaration as amended, the gist of the action is the breaking and entering of the close. The plaintiff asks damage for this, and also for the actual injury he has sustained by cutting his trees, instead of penalties for the latter.

Under the declaration, as originally drawn, the oath of the party, or his agent, to the fact that the trees had been cut, &c., and to his suspicion of the defendant’s guilt, was admissible in evidence. If that was not exclusive of other modes of proof, it serves to show that the cause of action is not the same, for under the declaration as amended it is clear that such evidence is wholly inadmissible.

And, furthermore, in Collins vs. Garland, Strafford, Dec. T. 1839, the court were very strongly inclined to the opinion that an action founded on the statute could not be supported unless the trespass were wilful.

The verdict must be set aside and

Judgment entered for the defendant.