Kellogg v. Kimball

The original declaration contained three counts, two in tort and the third in contract for money had and received, not alleged to be for one and the same cause of action. A demurrer was filed, and the Superior Court sustained the de murrer, because there was a misjoinder of a count in tort with a count in contract. The plaintiff thereupon, by leave of court, filed an amendment which was plainly intended to be a substitute for the first and second counts of his original declaration, containing two counts, one in contract and one in tort, and alleging that the count in tort was for the same…