McDermid v. Tinkham

The opinion of the court was delivered by Royce, J. The only question presented by the exceptions arises upon the motion made to dismiss all the counts in the amended declaration except the first. The first count in the original and amended declaration was in debt upon a judgment. The counts which the defendant claims should have been dismissed, were in debt upon the promissory notes therein described. If the cause of action declared upon in those counts was the same as the one declared upon in the original declaration, the motion was properly overruled; if for other and different causes of action, upon the authority of Carpenter v. Gookin, 2 Vt. 495, and other cases referred to on pages 27 and 28 of Roberts’s Digest, the motion should have been sustained. In Green et al. v. Starr, decided at the January Term, 1880, of the Supreme Court in Rutland County, the original declaration was in debt, and contained only the indebitatus and quantum, meruit counts, and the common counts for money lent, money paid, money had and received and on an account stated. Subsequently to the filing of the original declaration, but within the rule, the plaintiff filed a special count in debt declaring upon a judgment recovered by the plaintiff against the defendant in'the Supreme Court of New York. The defendant moved to dismiss the special count, for the. reason that it was for a different cause of action from that declared upon in the original declaration. The motion was sustained and the count dismissed ; and the ruling and judgment were affirmed by this court. The only fact that distinguishes that case from this, is, that in this the special counts that are objected to and that came in by way of amendment, are debt upon promissory notes, and in [618] that, the original declaration contained the counts above stated, and the objectionable count,in the amended declaration, was in debt on judgment; so that the order of declaring was reversed. But the question was regularly made in that case, as it is in this, whether the causes of action were the same. Without repeating what was said in that case, and the reasons that were assigned for the judgment, we regard it as a full and satisfactory authority for reversing the ruling of the County Court. The judgment is reversed and motion sustained, and the 2d, 3d, 4th, 5th, 6th, 7th, and 8th counts in the new or amended declaration are dismissed, and cause remanded.