North v. Nichols

39 Conn. 355

• Court: Supreme Court of Connecticut
• Decided: October 15, 1872
• Status: Published

Opinion

Butler, C. J.

Neither of the three objections urged in the court below against the allowance of the amendments, was sufficient.

1. Under our original and general statute relative to amendments, the first objection would have been tenable; for; the amendments contemplated the addition of counts in debt and covenant and changed the form of the action. But by a somewhat recent and special statute, a joinder of such counts in a declaration is authorized, and the general statute is suf ficiently broad to permit the addition, by way of amendment, of anything which could have been originally inserted in the declaration.

2. The amendments did not change the ground of the action. The original ground of the action was an indebtedness for rent, which became due at a specified time, and the com«* added by way of amendment were framed for the recovery ot the same indebtedness and the same rent.

3. The motion to amend was not too late. In Betts v. Hoyt, 13 Conn., 469, this court clearly intimated that in an extraordinary case after trial and the filing of a motion in arrest, where it appeared that the plaintiff would lose his debt if an amendment was denied, it should be allowed. In that case the amendment was in fact allowed, on a new motion showing such danger of loss, and by one of the judges who sat upon and concurred in the decision of the Supreme Court. That case is a sufficient precedent for this. Here the motion to amend was grounded on such danger, and the facts alleged in it were admitted by the defendant. It is clear therefore that the amendment was within the legal discretion of the court below, and that the discretion was properly exercised.

A new trial should be denied.

' In this opinion the other judges concurred; except Foster, J., who did not sit.