Daley v. Gates
Supreme Court of Vermont
Action on the case. At the term to which the writ was returnable the plaintiff filed a new count, which the defendant moved to dismiss for that it contained a new cause of action. Heard upon this motion at the September term, 1892, Ross, Ch. J., presiding. The court held, as a matter of law, that the cause of action was the same and overruled the motion. The defendant excepts. The case appears in the opinion.
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Action on the case. At the term to which the writ was returnable the plaintiff filed a new count, which the defendant moved to dismiss for that it contained a new cause of action. Heard upon this motion at the September term, 1892, Ross, Ch. J., presiding. The court held, as a matter of law, that the cause of action was the same and overruled the motion. The defendant excepts. The case appears in the opinion. Whether the new count was for the same cause of action was a question of fact, and the court erred in 'holding that it was as matter of law. Boyd v. Bartlett, 36 Vt. 12; Ly-coming Fire…
1Opinion of the Court
The opinion of the court was delivered by
ROWELL, J.
The original declaration charges that the defendant enticed away plaintiff’s husband, per quod consortium arnisit. The new count charges criminal conversation with him, with the same quod.
An amendment cannot be allowed that introduces a new cause of action. But as long as the plaintiff adheres to the contract or the injury originally declared upon, an alteration of the modes in which the defendant has broken the contract or caused the injury is not an introduction of a new cause of action. The test is whether the proposed amendment is a…
2Cases cited7 opinions
- Bennett v. . BennettNew York Court of Appeals · 1889
- Foot v. CardSupreme Court of Connecticut · 1889
- Maxwell v. HarrisonSupreme Court of Georgia · 1850
- Rinehart v. BillsSupreme Court of Missouri · 1884
- Boyd v. BartlettSupreme Court of Vermont · 1863
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3Cited by21 opinions
- Johnson v. Hardware Mutual Casualty Co.Supreme Court of Vermont · 1938
- Jenness v. SimpsonSupreme Court of Vermont · 1911
- Brooks v. ChildressCourt of Appeals of Maryland · 1951
- Fratini v. CasliniSupreme Court of Vermont · 1894
- Cahill v. Illinois Central RailroadSupreme Court of Iowa · 1908
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