Thornton v. Townsend , 39 Me. 181 ( 1855 )

Shepley, C. J.

— 'The counsel do not agree respecting the questions presented by the report prepared by themselves. There can be no reasonable doubt that the intention was to present for the consideration of the Court of law what rulings were made at the trial, and nothing else. The words “are amendable,” were evidently used with reference to the counts in their original condition, and not to their condition after they had been amended. Motions in arrest of judgment in civil cases, being forbidden by statute, c. 115, § 80, the Court cannot be expected to make such a construction of the language cited in the report, as would give to the defendant such an advantage.

The questions presented are whether the amendment of the first and second counts was properly permitted, and if not, whether the declaration was sufficient without amendments.

The cause of action designed to be set forth in those counts, was the right of the plaintiff to recover seventy-five cents, forfeited by the defendant as owner of a horse found going at large without a keeper in the highways or roads of the town of Biddeford. The forfeiture would be the same and the plaintiff’s right to recover the same, whether the horse were so found in the road or in a highway.

The terms road and highway not having the same meaning as used in our statutes, those counts were regarded as defective, because they did not positively allege the offence to have been committed in either. After the amendment was made, they allege it to have been committed in a road. The amendment introduced no new cause of action, and it was properly allowed. It is not therefore necessary to consider whether those counts would have been sufficient without amendments. Judgment on the verdict.