ERROR to the Common Pleas of Westmoreland county. An amend ment of the declaration at any time trial. new cause of But pro Day, the plaintiff below, brought an action on the case; may be made and filed a count in indebitatus assumpsit, for money had and during the received. On the trial it appeared, that in December, 1810, the plainthe plaintiff gave the defendant a mare and twenty-five dol- tiff shall not lars in exchange for a horse. The defendant sold the mare to introduce be permitted for a tract of unseated land and twenty-five dollars. It after- an entirely wards turned out that the horse had originally belonged to a action. person in Philadelphia, from whom he had been stolen in May, vided he ad1810: and after passing through different hands was purchased heres to the original cause by the defendant without any knowledge of the theft; and the of action, he plaintiff was obliged to deliver him up to the owner. It was may add a contended by the defendant and held by the court below, that tially different on the present count the plaintiff could recover only the fifty claration. dollars received by the defendant, without interest. The plaintiff thereupon moved to amend the declaration, by adding a new count, founded on the special contract of the parties; to which the defendant objected. The court, however, permitted it to be done, and sealed a bill of exceptions. Forward and Wilkins, for the plaintiff in error, contended, that the amendment was improperly allowed. 1. Because VOL. II.-A count substan from the de DAT. 1815. the jury had been sworn and evidence had been heard. 2. CUNNINGHAM The act of 21st March, 1806, allows of amendments only in V. matter of form; but this was matter of substance. The count introduced by way of amendment contained matter altogether new, and materially different from the first count; and it has been decided by this court in Ebersol v. Krug,(a) that a different cause of action cannot be introduced by way of amendment. If the action was founded on a warranty, money had and received was not the proper mode to try it. Cowp. 818. There would be no end of delay if such amendments are allowed. Suits would be everlasting. 1 Binn. 587. But Alexander, contra. A writ of error will not lie on the court's decision on collateral points on motion. 1 Binn. 226. This amendment is not in nature of a judgment: it was a matter depending on the discretion of the court. there is no error. 1. The act of assembly expressly authorises amendments "on the trial of the cause.' "" 2. The amendment is only in the form of declaring: no new cause of action is introduced: but a count better calculated to bring the plaintiff's claim before the jury. The act of assembly was intended to promote the trial of the merits, and to attain substantial justice. He cited 3 Lev. 347. 1 Bac. Ab. 168. Tite v. Bishop of Worcester.(b) TILGHMAN C. J. On the trial of this cause in the Court of Common Pleas, after the jury were sworn and evidence had been given, the plaintiff was permitted to amend his declaration, to which the counsel for the defendant took an exception. Two objections have been made to the court's opinion. It is said, 1. that it is too late to ask for an amendment after the jury are sworn and evidence given; and 2. that if not too late, an amendment can only be allowed of matter of form, but here the amendment was of substance. There is nothing in the first objection. The act of assembly (21st March, 1806, sect. 6.) provides, that "the plaintiff shall be "permitted to amend his declaration, and the defendant may "alter his plea or defence on or before the trial of the cause; "and if by such alteration or amendment the adverse party is "taken by surprise, the trial shall be postponed to the next "court." 1815. บ. The construction of this act has been settled by CUNNINGHAM repeated decisions, that an amendment may be granted at any time during the trial. As to the second objection, the defendant contends for too strict a construction of a law which ought to receive a liberal interpretation. The object is the attainment of substantial justice unembarrassed by form. The plaintiff shall not be permitted to introduce an entirely new cause of action under pretence of amendment. Having declared for slander, he shall not introduce trover, or malicious prosecution, or libel. Such was my opinion in Ebersol v. Krug, 5 Binn. 51, cited by the counsel for the defendant. But provided he adheres to the original cause of action, he may add a count substantially different from the declaration. And whether he does so adhere the court can always judge. Let us test the present amendment by this principle. The plaintiff declared for money had and received. But his action was founded on a bargain with the defendant on an exchange of horses. The plaintiff had given the defendant a horse and twenty-five dollars; and received in exchange a horse which had been stolen, though not known to the defendant. The owner of the horse claimed him from the plaintiff, who gave him up and brought this action for redress. The court was of opinion, that the count for money had and received did not cover the merits of the plaintiff's case: if the verdict had been taken on that count the plaintiff must have suffered: and in order to do justice, he was permitted to add a count suitable to the nature of the case. It was very evident, that there was no change of the cause of action. The plaintiff had been mistaken in the form of his declaration, but it was the injury from the stolen horse, for which he sought redress. I am clearly of opinion, therefore, that the amendment was allowable. The judgment is to be affirmed. YEATES J. absent. BRACKENRIDGE J. concurred. DAY. Judgment affirmed. 1815. Pittsburgh. Saturday, Evidence may be given of a sale under an order of the Orphan's is shewn that cessary in or rise such sale, nistrator should have his adminis tration ac count. HUCKLE and wife against PHILLIPS. IN ERROR. ERROR to the Common Pleas of Westmoreland county. The plaintiffs, Jesse Huckle and Jane his wife the daughCourt, on the ter of Joseph Brownlee deceased, brought this ejectment to petition of an administrator, recover land that had belonged to the estate of Brownlee. without pro- The defendant claimed under sales made by order of the Orducing the letters of admi- phan's Court of Westmoreland county in 1785, 1786, and nistration, if it 1787. On the trial of the cause the defendant offered evithey are lost. dence of such sales having been made at the instance of John It is not ne- Guthrie deceased, as administrator of Brownlee. The deder to autho- fendant did not produce any letters of administration to that the admi- Guthrie, but offered to prove that Brownlee was killed by the Indians in July, 1782: that the present register of Westfirst settled moreland county had searched in his office and that there was no record of the letters of administration, nor could any adBut it seems ministration bond be found: that the former register was that if before somewhat addicted to intemperance, kept his office in differthe purchase money is paid ent places, and did not take due care of the papers belonging such account to it: that on inspection of the books of the office the entries is settled, and a surplus did not appear to be made, in some instances, at proper remains in the times; and that by the omission of the former register and tor's hands his clerks, the entries appeared to have been made in a great after paying all debts, the many cases long after administration had been granted. The decree would defendant further offered to prove, by a witness, that an adA decree of ministration bond was drafted, and, as the witness firmly believed, executed by the witness as one of the securities: that maintenance the country was just emerging from war: that by a copy of a child only af- list of debts and affidavits taken before the former register, in sales for pay. 1784, it appeared that he recognised Guthrie as administrament of debts, tor; and also allowed as charges against the estate, certain is good. administra not be valid. sale on the ground of of an infant ter former fees to himself amounting to more than the charges of stating the account: that no loss had accrued from the want of an administration bond, the balance due to the plaintiff on a final settlement having been paid over to her guardian by Guthrie as administrator. This and some other testimony of the same kind was offered to induce a presumption that letters 1815. HUCKLE of administration had been duly issued to Guthrie, and a bond taken which had been since lost, The whole of this evidence was objected to by the plaintiff, but admitted by the and wife court, who sealed a bill of exceptions. It appeared in evidence that the first sale of a portion of the land took place on the petition of Guthrie, as administrator, dated in February, 1785. There was no inventory or appraisement proved; but a list of debts against the estate so far as they had come to the knowledge of the administrator, with the amount of the goods, &c, which had come into his possession arising from a vendue, was affixed to the petition and exhibited to the court, leaving a balance against the estate, which was sworn to by the administrator, and examined by the register, and passed by the court in 1794, after a guardian to Jane Brownlee had been appointed. The proceeds of this sale still left a balance due by the estate. A second sale of another portion of the land took place in 1786, which extinguished that balance. A third sale was had on the 7th February, 1787, of the residue of the land, containing 75 acres. The petition of the administrator contained no list of debts, but referred to the former proceedings, and stated generally the insufficiency of the estate to discharge the just debts and educate the child. The administrator made a return of these sales and a final settlement of his administration account, by which settlement it appeared that there were debts due by the estate and unpaid at the date of the last order of sale: and it was proved that among other loose papers in a trunk in the register's office were found, six or seven months prior to the trial, certain vouchers dated in 1784, 1785, 1786, 1787, for the payment of the debts of Brownlee by Guthrie. There was no appearance of fraud: and the lands sold for their full value. The president of the court below charged the jury that the documents on which the first sale was founded, though not in the terms of the act of 1764, sect. 7. were of equal force and effect, and that the first and second sales were authorised by law. That the third sale could not be supported on the principle of outstanding debts. The administrator, if he knew of debts, should have exhibited a statement of them on oath or affirmation instead of making a general affidavit to the contents of his petition. If the sale could be supported it could only be on the ground of want of funds for the nee PHILLIPS. |