
    John C. Wolcott & another vs. George A. Buck.
    Refusal by the superior court to the plaintiff in an action of waste of leave to change the form of his action so as to make it an action of tort in the nature of waste is not subject to exceptions.
    Action of waste brought in the superior court at June term 1865 for Berkshire. By the pleadings it appeared that the defendant was tenant by the curtesy of a piece of land in Windsor, and the plaintiffs, John O. Wolcott and Elizabeth S. Petitcler, were owners of the remainder; and that on April 16,1866, the plaintiff Wolcott, by deed of quitclaim with special covenants of warranty, conveyed his interest in the premises to the other plaintiff and her husband, who on the same day took a conveyance by lease of the defendant’s life estate, and entered nto possession. The action came to trial at October term 1866, when the plaintiffs moved to amend their declaration “ so as to make the action for damages, and not for forfeiture.” Rockwell, J., refused the leave desired, whereupon the plaintiffs consented to a verdict for the defendant, and alleged exceptions.
    
      
      J. C. Wolcott, for the plaintiffs.
    
      H. L. Dawes, for the defendant.
   By the Court.

As the exceptions stand, there is no question open to revision by this court. The plaintiffs assented to the rendition of a verdict for the defendant, and cannot now be heard to say that it is not well maintained in point of law. It would have been otherwise if it had appeared that the verdict was founded on any ruling of the court affecting the merits of the case. But none such was made. No decision or direction was given which touched the right of the plaintiffs to recover in the action. The only ruling made was on the question of an amendment of the plaintiffs’ declaration, by which they sought to set out substantially a new cause of action. But the allowance of the amendment was within the discretion of the court below, to which no exception lies. Payson v. Macomber, 3 Allen, 69 Gwynn v. Globe Locomotive Works, 5 Allen, 317.

Exceptions overruled.  