In this action the question whether the amendment is admissible is to be determined by the ordinary rule. Is the matter proposed to be introduced, an additional description of the same cause of action, or a description of a different cause of action? In this case, that must be determined by the language used. It is evident that all which is alleged in the amended declaration might well enough be one continuous transaction. The mode in which the different parts are connected together by the conjunction "and," and the construction of the sentence, evidently relate to a single continuous transaction, of which one incident, viz., the imprisonment, having been at first omitted from the declaration, is introduced by the amendment. Considered in this view, the amendment only, completing the description, is clearly admissible. *Page 574
If at the trial there should be an attempt made to introduce the separate transactions, it would be the duty of the court to exclude the evidence.
The rule is too well established to need the citation of authorities. The whole difficulty is in the application. In this case the amended declaration, is its terms, describes a single transaction, and at the trial there will be no difficulty in confining the proof accordingly.
The amendment, of course, must be upon terms of indemnity. The pleas do not fully answer the amended declaration, and the defendant must have leave to amend his pleadings to meet the additional matter.
As the declaration originally stood, I do not see why the pleas are not sufficient, and no objection is suggested in the plaintiff's brief. The new pleading, then, being rendered necessary by the amendment, the terms of the amendment ought to be reasonable indemnity against the expense and delay.
LADD, J., concurred.
Amendment allowed and demurrer overruled.