Kraft v. Gilchrist

The opinion of the court was delivered by Lowrie, C. J. Properly speaking, there can be no question of forms of action before justices of the peace, but only of causes or subject-matters of action. The justice describes this case as “ debt on book account;” but afterwards he is more particular, and says that “ plaintiff’s demand is for a lot of spars.” When the case came into court on appeal, the plaintiffs declared in trover for thirty spars, and we cannot say that this is a change of the cause of action. We would say, primá facie, it is not. If the defendants had wrongfully converted the spars and sold them, the form in court might be either assumpsit or trover: 17 S. & R. 141. But the wrongful conversion is laid in the declaration as having been the day after the suit was brought before the justice. This is very evidently a mere mistake, for it is the same cause of action, and must have arisen before suit brought. No notice was taken of this mistake on the trial; no demurrer or motion to strike off the declaration, no objection to evidence or motion to arrest the judgment, was presented on this account. The mistake was amendable even after verdict, and therefore may be considered as cured by the verdict: 2 S. & R. 219; 2 Rawle 23; 5 State R. 204; 14 Id. 71. The court tried the very issue presented by the parties in their pleadings, and they ought not now to go back of them, to show that their pleadings give wrong dates to the transaction : 30 State R. 205. Judgment afSrmed.