Where the facts appearing on the trial of an action of trover showed that the plaintiff was entitled to recover for the same cause in an action of assumpsit, the court declined to consider the question whether trover could be maintained, but gave the plaintiff leave to amend by joining a count in assumpsit, and thereupon ordered judgment.
CARPENTER, J.
The question presented is of no practical importance. Time spent in considering it would be wasted. If upon examination it should be found that the action in its present form cannot be maintained, the plaintiff would be permitted to amend by filing a count in assumpsit. The facts upon which the rights of the parties depend having been fully tried and determined, there is no occasion for a further trial. The plaintiff may amend by adding a count for money paid (McDuffee v. Railroad, 52 N.H. 459, Buckminster v. Wright, 59 N.H. 153, and Merrill v. Perkins, 59 N.H. 343), and thereupon there will be
Judgment for the plaintiff.
STANLEY, J., did not sit: the others concurred.