
    Chase v. Dodge & a.
    
    An amendment of a declaration “ averring substantially the same facts,” does not change the cause of action, and may be allowed.
    Trespass quare clausum. Plea, the general issue. Facts found by a referee. The plaintiff formerly owned the premises in question, and conveyed the same to the defendants’ grantor, reserving a right of way over the “mill-way or road.” In the winter of 1878 the defendants piled up some logs in such a manner that they extended into and obstructed the “ mill-way or road.” At the trial term, the plaintiff moved for leave to amend his writ by changing the form of action from trespass to trespass on the case, and substituting a proper count averring substantially the same facts as were alleged in the original declaration. The amendment was allowed, and the defendants excepted.
    Flanders, for the defendants.
    Shirley, for the plaintiff.
   Foster, J.

An amendment of a declaration averring substantially the same facts, does not change the cause of action, and, the rights of third persons not being affected thereby, it should be allowed “ for the prevention of gross injustice.” G. L., c. 226, s. 9; Laws of 1879, c. 7.

The matter of costs will be arranged at the trial term.

Case discharged.

Allen, J., did not sit: the others concurred.  