Nash v. Adams

The objection urged against the amendment of the declaration in this case is, that it changed the ground of the action ; its form was confessedly preserved. The statutes of amendment, and the decisions upon them, in other states, which have been very elaborately examined by the *38defendants’ counsel, obviously furnish but little light for our guidance in expounding our own statute on that subject. Ours is a very ancient law, and has continually been more and more liberally expounded, so as to further the beneficial purpose intended by it, which was to prevent the plaintiff from being put to a new action, where by accident, mistake, or inadvertence, or even by carelessness, he had, in his declaration, made a formal slip, or misdescribed the facts of his case ; subjecting him, however, if he does not amend within the short time allowed by the statute, to the payment of costs, at the discretion of the court. And, under the long and unquestioned practice of our courts, it has received such a broad construction, that we have no difficulty in sanctioning the amendment, which was allowed in this case. The third original count of the declaration was in the most general form, stating that the defendants, at their special instance and request, had the care and custody of the gold therein described, and by their neglect to take proper care thereof, a part of it was lost. If the declaration had contained only this count, the amendment allowed would only have been an amplification of it, making it more particular as to details, and would have been allowable on the strictest principles claimed by the defendants. But it is not necessary, in our opinion, to justify the amendment on that ground. If that count had not been inserted, we should still think that it might have been permitted. Many cases of amendments might be cited in which the objection, now urged, applied with quite as much force as in the present, but in which it was overruled and no exception taken. In a great proportion of the cases where amendments are allowed, the ground of action is, in one sense, changed; as where, for instance, the date of a note declared on, or its amount, is incorrectly described: but amendments, in such eases, are very frequent, where the court is satisfied that the error arose merely from mistake, or inadvertence, and that the action was intended *39to be brought on the instrument, or cause of action, as described in the amendment.

The phrase, “ ground of action,” is not used in this statute in any technical or narrow sense, but was intended to refer rather to the real object of the plaintiff in bringing the suit; and such a construction has always been given to it as would further that object. The face of the declaration merely, therefore, has never been held to determine whether it may be amended, the form of the action being preserved; but courts, in deciding upon the admissibility and propriety of an amendment, have uniformly, and, we think, properly, looked also at the extrinsic circumstances of the case, with a view of ascertaining the real purpose for which the suit was brought. In this case, we consider the ground of action, using that phrase as it is used in the statute, to be the nondelivery, by the defendants, of the gold which was entrusted to their charge, and that the superior court did not exceed its power in allowing the amendment, as to the manner, time, or place, of its reception by the defendants to be transported, which was substantially all that was done in this case.

The judgment complained of is therefore affirmed.

In this opinion the other judges, Waite and Hinman, concurred.

Judgment affirmed.