Capron v. Thompson

44 Mass. 59

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1841
• Status: Published

Opinion

Shaw, C. J.

We do not perceive that the amendment m question was not within the very ample authority, conferred on the courts, to allow amendments in form and substance. Rev Sts. c. 100, § 22. The action was trespass for damage alleged to be done to the plaintiff’s sheep by the defendant’s dog. The injury to the sheep was the cause of action, and the averment of value was incidental. The amendment did not introduce a different cause of action.

Nor do we perceive that the plaintiff was estopped by the averment of the value of his flock of sheep, in actions against other persons. The cause of action against each was distinct, not the same ; it was', in each case, the damage done by the defendant’s particular dog. Buddington v. Shearer, 20 Pick. 477. Non constat, from the averments, that the sheep mentioned in this action were the same that were mentioned in the others.

All estoppels are to be construed strictly. If therefore the amendment was allowable, upon general grounds, we cannot perceive that the fact of having valued his sheep at $ 30, in other actions, should prevent him from amending, and averring in this action, that they were of a higher value. As matter of proof, ou the question of danfages, if the plaintiff, upon other occasions, had valued the same sheep at a lower rate, the defendant would have the benefit of it.

Exceptions overruled