| Cal. | Jul 1, 1855
Heydenfeldt, J., concurred.
This was originally an action of assumpsit to recover rent for the occupation of premises in the city of Marysville. The complaint is in the usual form of a declaration in indebitatus assumpsit.
On the trial, the plaintiff introduced the record Court of Yuba County, showing a recovery in ejectment against defendant, and after proving the monthly value of the J the case. The defendant moved for a nonsuit, and the Court directed the jury to find a special verdict reserving the question”
From the plaintiff's own showing it is apparent that he was not entitled to recover in this form of action. To enable a party to recover rent eo nomine he must show that the defendant’s possession was by virtue of some express or implied agreement; and no action will lie where the possession was adverse and tortuous, for such possession excludes all idea of contract. See O'Conner v. Corbitt, 3 Cal., 370" court="Cal." date_filed="1853-10-15" href="https://app.midpage.ai/document/oconner-v-corbitt-5432612?utm_source=webapp" opinion_id="5432612">3 Cal., 370.
Some nine months after the trial, the Court set aside the verdict of
The amended complaint founds in tort, and is in fact an action of trespass for mesne profits. Although great latitude is allowed the Courts of this State in the matter of amendments, it would be carrying their power and discretion to an extreme point to permit a party, after summoning his adversary to appear and defend in an action ex contractu, to amend his declaration so as to change the proceeding into an action ex delicto, and that after issue joined, trial and motion for nonsuit, or in arrest. The character of the proceeding is changed by the amended complaint, and the defendant finds himself in Court to answer a charge concerning which he has never been summoned. This practice is too loose and dangerous to be tolerated.
If it is sought to treat the complaint as an amendment to the old one, and to continue the original action; then the objection at once suggests itself that two causes of action incompatible in their nature are joined.
The judgment is reversed, and the Court below directed to enter a j udgment of nonsuit.