
    Fred Fowler v. Robert Rogers.
    May Term, 1917.
    Present: Watson, C. J., Haselton, Powers, Taylor, and Miles, JJ.
    Opinion filed October 2, 1917.
    
      Pleading — Misjoinder of Causes of Action.
    
    There is no misjoinder in amending a declaration consisting of a count in case by adding thereto a count in trover.
    Tort. Plea the general issue. Trial by jury in the Hartford Municipal Court, A. G. Whithorn, Judge. Verdict for plaintiff.
    The declaration consisted of a count in case for deceit: After the jury had been empaneled, plaintiff moved for leave to amend the declaration by filing an additional count in trover. Motion granted and defendant excepted.
    After verdict and before judgment, defendant moved in arrest, alleging that the plaintiff had joined in the declaration two separate and distinct causes of action, inconsistent with each other. Motion overruled, and defendant excepted.
    
      Charles Batchelder for defendant.
    
      John J. Wilson for plaintiff.
   Miles, J.

This case comes to this Court on exceptions of the defendant to the rulings and judgment of the Hartford Municipal Court, on the defendant’s motion in arrest of judgment.

We think and so hold that there is no merit in defendant’s exception. Case and trover could always be joined at common law and their joinder does not depend upon any statute. In Ayer v. Bartlett, 9 Pick. 156, 74 Am. Dec. 472, a declaration containing a count in trover was allowed to be amended by adding a count in case. It is stated in 23 Cyc., 391, “ Trover and case may be joined, trover being originally an action on the case. So when an action is originally trover, new counts in case may be added by way of amendment." In Moulton v. Witherell, 52 Me. 237, it is held that a declaration containing a count in case may be amended by adding a count in trover. There was no misjoinder in this case and the court in its discretion committed no error in allowing an amendment.

Judgment affirmed.  