Briggs v. Bennett

The opinion of the court was delivered by Redeield, Ch. J. We are not aware that any different principle is involved in this case, from that decided in the same plaintiff v. Oaks. I. If the form of action was misconceived, that will not be fatal to plaintiff’s right to recover upon the report in his favor, inasmuch as it was the case referred, which will allow the plaintiff to present any case which he could have shown in court, either on the first declaration, or any which it was competent for the court to allow him to file. And as the power of amendment extends even to the changing the form of action; if case is the proper form of declaring, it was competent for the county court, to have allowed the plaintiff to substitute that form of declaring. And in addition to that, the Legislature,’ at its last session, enacted, that in any suit for trespass, pending in any court in the state, the court might, on the application of the plaintiff, allow him to join counts in case, which would clearly apply to the present case. So that if we should reverse the judgment on the ground that such was not the law at the time of the judgment in the county court, we should only have to remand the case for them to proceed with it according to law, or ourselves enter up judgment according to the existing law. II. And according to the view taken in the case of Oaks, the tenant John G-. Taggart, by departing from his contract, and putting the property to a different use was guilty of such an abuse, [149] as forfeited his estate, and revived the right of the general owner to immediate possession, and will thus enable him to maintain trespass for any interference with the property by a stranger, after the tenancy was determined. Judgment affirmed.