Without inquiring into the sufficiency of the declaration as it stands, I am clearly of opinion that the case comes within the statute respecting amendments — Gen. Stats., ch. 207, sec. 8 — and that the amendment should have been allowed.
In Melvin v. Smith, 12 N.H. 462, referred to by the defendants' counsel, the amendment was properly refused because it entirely changed the cause of action, transforming it from a suit to recover penalties for cutting trees, under the statute, to an action of trespass, quare clausum fregit, to recover the actual damage caused by the cutting, which was a very different thing. Here, the plaintiff sought by his original count to *Page 23 recover the actual damage caused by the defendants' act in killing his dog.
By the amendment, he seeks the same thing and nothing more. The court can see that the identity of the cause of action is preserved, and that the defect is simply a defect in the statement of the plaintiff's right.
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