Downing v. Burnham

The declaration contained counts in trespass guare clausum, alleging the cutting and removal of trees and *150growing timber; a count in trespass de bonis, alleging the removal of saw-logs, wood and timber; and a count in trover, alleging a conversion of like property. When the case was reached for trial, plaintiff moved to amend by striking out the last two counts, and the defendants objected, for that the counts of' trespass on the freehold and the count in trover were not and could not be for the same cause of action, and so were improperly joined, and that consequently the declaration could not be amended as proposed without changing the cause of action.

The question presented is purely one of pleading, no jurisdictional question being involved. It is not necessary to inquire whether the counts are for different causes of action; for the striking out of one of two counts, whether it be for a separate cause of action or not, does not change the cause of action set up in the other count; and we think the rule forbidding an amendment which changes the cause of action can not preclude a plaintiff from perfecting his declaration by abandoning a count for a different cause of action, which has been mistakenly added. The amendment was properly allowed. Chitty *206; Gould, Ch. 4, §101; See Abbott v. Keith, 11 Vt. 525; Haskell v. Bowen, 44 Vt. 579; Rowley v. Shepardson, 83 Vt. 167; Sawyer v. Childs, 83 Vt. 329.

Judgment affirmed and cause remanded for the assessment of- damages.