
    James G. McConnell vs. John L. Leighton.
    Aroostook.
    Opinion February 16, 1883.
    
      Trover. Pleadings. Amendment.
    
    Trover is an action of the case and may be joined with case. When the action is origihally trover new counts in case may be added by way of amendment.
    On REPORT.
    The opinion states the case.
    
      Madigan and Donworth and Wilson and Spear, for the plaintiff,
    cited: Rule V, S. J. C.; 2 Chit. PI. (16 ed.) 293 ; 2 Bouv. Inst. § 2881 ; Bouv. Law Diet. 672 ; 2 Saun«L. PI. 117 ; Moulton v. Withered, 52 Maine, 237; Googins v. Gilmore, 47 Maine, 9 ; Ball v. Olaflin, 5 Pick. 304; Smith v. Palmer, 6 Cush. 513; Solon v. Perry, 54 Maine, 493.
    
      Powers and Poioers, for the defendant.
    As the writ now stands the action cannot be maintained without proof that the defendant either did some positive wrongful act with the intention to appropriate the property to himself or to deprive the rightful owner of it or destroy it. Nor can it be maintained by evidence of negligence alone. The cause of action in any case is the wrongful act which causes the injury and not the injury itself. Hagar v. Pandall, 62 Maine, 439 : Spooner v. Holmes, 102 Mass. 506; Bouv. Law Diet. Tit. "Action”; Anilis v. Gilmore, PI Maine, 158; Millihen v. Whitehouse, 49 Maine, 527.
   Appleton, C. J.

This is an action of trover for the conversion of certain logs belonging to the plaintiff.

The plaintiff moved to amend by addi,ng counts in case for the loss of the same logs through the wrongful action and inaction of the defendant. The propriety of the proposed amendments was submitted to the court as a question of law.

Trover is an action on the case. It may be joined with case. When the action is originally trover, new counts in case may be added by way of amendment. Googins v. Gilmore, 47 Maine, 9; Moulton v. Witherell, 52 Maine, 237.

It is objected that the new counts describe differently the grounds of the defendant’s liability and that they would be sustained by proof varying from what would be required in trover. But all amendments vary from the declaration as originally drawn else they would be unnecessary. ^

Here the loss on all the counts is the same. A different description of the manner of its occurrence may necessitate a difference of proof. But in all the counts the defendant is alleged to be the cause of the loss. The statements of the liability of a defendant may vary when the wrong done aixd the loss occurring are the same. The amendments are clearly within the cases cited. Swan v. Nesmith, 7 Pick. 220; Ball v. Claflin, 5 Pick. 303; Smith v. Palmer, 6 Cush. 517; Rand v. Webber, 64 Maine, 191.

The amendments are to be allowed on terms to be fixed at Nisi Prius.

Walton, Danforti-i, Virgin, Peters and Symonds, JJ., concurred.  