Burnham v. Plant

In trespass qu. cl. the gist of the action is the disturbance of the possession. If the entry is illegal, a cause of action at once arises. After the breaking and entering, whatever else is done is only in aggravation of damages. Brown v. Manter, 22 N.H. 468. So if the plaintiff alleges a breaking and entering and cutting down his trees, and fails to prove the cutting, he may still recover for the unlawful entry. Ib. And if the entry is justified, the action fails. Anderson v. Nesmith, 7 N.H. 167; Great Falls Co. v. Worster, 15 N.H. 416. A count in trespass de bonis asportatis may be joined with account in trespass qu. cl. fr., or the plaintiff may allege the breaking and entering and the carrying away in the same count as he has done in this case.

The plaintiff has alleged a breaking and entering of his premises, and the carrying away of his wood and timber. He might, instead, have declared (1) that the defendant broke and entered his close; and (2), in a separate count, that he took and carried away his wood and timber. He now asks for leave to amend by adding a count for the taking and carrying away, from the same locus, of the same wood and timber described in the original count. No reason occurs to me why this may not be done. If it was proposed to add a count for the taking and carrying away of other wood and timber, from another lot. a different question would be presented. But it appears that the new count relates to the same matter that could be given in evidence in aggravation of the damages under the original count; and, although the gist of the action is the breaking and entering, yet the identity of the cause of action appears to be sufficiently preserved. In Cahill v. Terrio,55 N.H. 571, we decided that in trespass for assault and battery the declaration might be amended so as to include an allegation of false imprisonment, upon the ground that it did not introduce a new cause of action, but merely introduced an additional particular of the injuries originally complained of. This amendment is not open to the objection of introducing a new cause of action, or of being inconsistent with the cause as originally set out. It is in fact a part of the original grievance complained of, set out independently of another part of the same grievance. The amendment should be allowed.

Exceptions overruled. *Page 43