Knapp v. Hartung

• Decision Date: 17 May 1873
• Citation: 73 Pa. 290
• Parties: Knapp <I>versus</I> Hartung.
• Court: Pennsylvania Supreme Court

73 Pa. 290

Knapp versus Hartung.

Supreme Court of Pennsylvania.

March 3, 1873.

May 17, 1873.

March 3d 1873.

Before READ, C. J., AGNEW, SHARSWOOD and MERCUR, JJ. WILLIAMS, J., at Nisi Prius

Error to the Court of Common Pleas of Schuylkill county: No. 206, to January Term 1871.

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G. E. Farquhar and F. W. Hughes, for plaintiff in error.— In the amendment of the declaration a new and different cause of action may not be introduced, but whatever is a mere variation of the mode of charging that which is already on the record is admisisble: Beates v. Retallick, 11 Harris 288; Hartman v. Keystone Insurance Company, 9 Id. 466; Steffy v. Carpenter, 1 Wright 41. A declaration in trespass q. c. f. d. b. a. can be amended so as to charge asportation to the goods: Mechanics' & Tradesmen's Ins. Co. v. Spang, 5 Barr 113. So a declaration containing the common money counts may be amended to charge the defendant as drawer and also as endorser: Cabarga v. Seeger, 5 Harris 514. So a declaration on a note may be amended by a count for goods sold, Schoneman v. Fegley, 7 Barr 433, and counts for money had and received, for one for exchange for horses: Cunningham v. Day, 2 S. & R. 1. Unless objection be made at the time consent will be presumed to an amendment: Wilson v. Jamieson, 7 Barr 126; Lea v. Hopkins, Id. 492.

C. Shindel and J. W. Ryon, for defendant in error.—The reporter received no paper-book of defendant in error.

The opinion of the court was delivered, May 17th 1873, by MERCUR, J.

This was an action of trespass quare clausum fregit et de bonis asportatis.

The original declaration filed, charged the defendant with entering the plaintiff's close, and with cutting down, taking away and converting oak, ash, beech and chestnut trees. After the jury was sworn, by leave of the court, upon the payment of the costs by the plaintiff, and without any exception on the part of the defendant, two separate additional counts were filed. The one charging the defendant with entering another close of plaintiff's, and taking therefrom, and converting the cordwood and railroad sills. The other with taking and converting white-oak, hickory, and black-oak logs. The defendant alleged surprise, and the case was continued. To these amended counts the defendant pleaded not guilty, and the Statute of Limitations.

More than a year thereafter, another jury was called. After they were sworn, upon motion of defendant's counsel, the court struck off the first amended count, and "hickory logs" from the second amended count. To this the first assignment of error is made.

The substance of the plaintiff's cause of action was, that the defendant had entered the close of the plaintiff, and had cut thereon, and removed therefrom, and converted his trees and lumber. They had all been cut upon a piece of land to which the plaintiff had acquired title from the father of the defendant. The plaintiff charged the defendant with a series of trespasses upon it.

The Act of 21st March 1806, permitting amendments, has received a liberal construction. Under it the power of the courts extends to every informality which will "affect the merits of the case" in controversy, except they cannot permit an entirely new cause of action to be introduced. If the plaintiff adheres to the original cause of action, he may add a count substantially different from the declaration: Cassell v. Cooke, 8 S. & R. 268; Yohe v. Robertson, 2 Wharton 155. This right is mandatory upon the courts: Maus's Lessee v. Montgomery et al., 10 S. & R. 192; Sandback v. Quigley, 8 Watts 460.

In actions ex contractu, so long as the plaintiff adheres to the original instrument or contract on which the declaration is framed, an alteration of the grounds of recovery upon that instrument or...