Royse v. May
| Decision Date | 03 May 1880 |
| Citation | 93 Pa. 454 |
| Parties | Royse <I>versus</I> May. |
| Court | Pennsylvania Supreme Court |
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ., GREEN, J., absent.
Error to the Court of Common Pleas of Bradford county: Of January Term 1878, No. 301.
De Witt & Hall, for plaintiff in error.—The first two counts admitted in the original narr. that plaintiff was the tenant of one Barnes, and that there was rent due and unpaid to the amount of $200. The simple statement shows that the amendment cannot be allowed. It is clearly a new cause of action: Winder v. Northampton Bank, 2 Barr 446; Steffy v. Carpenter, 1 Wright 41; Penna. Railroad Co. v. Zug, 11 Id. 484. The amendment allowed by the court after the trial was nearly concluded is virtually the same as the one refused by the court before the trial. The amendment was not made under the Act of 10th of May 1871, because plaintiff did not pay, nor offer to pay, the costs as required by that act.
Patrick & Foyle, for defendant in error.—What may be alleged in one count will not preclude or prevent the plaintiff from giving evidence and proving his case under another count in his declaration. The plaintiff in the case could have given all his evidence and recovered under the third count in trover without any other counts at all, and without any amendment whatever of the declaration. We contend, however, that the first and second counts were amendable.
The first assignment of error is to permitting the amendment of the declaration after the plaintiff below had closed his evidence. The amendment was not made under the Act of 10th May 1871, which, on the conditions therein prescribed, permits a change in the form of action. Apart from that act, which has no application to the present case, the right of amendment may be liberally allowed; but not to such an extent as to substantially change the cause of action: Steffy v. Carpenter, 1 Wright 41; Trego v. Lewis, 8 P. F. Smith 463. If the amendment was allowable it is not error merely because it was permitted on the trial. Some other fact must be shown to make it improper.
This action was trespass. It was against a person who had acted as bailiff in distraining and selling goods under a claim of rent due and in arrear. The declaration contained three counts. The first and second each averred that the defendant in error held and occupied the premises as tenant of one B. C. Barnes, and that a certain sum specified was due and in arrears for the rent thereof, and charged that the distress made was excessive. The third count was in trover. It had been tried before arbitrators, who awarded against the plaintiff in error, and from which award he had...
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Hanley v. Ryan
...where in trespass vi et armis against a constable for an excessive distress, it omitted the admissions as to plaintiff's tenancy: Royse v. May, 93 Pa. 454; where relationship and standard of care was changed from that due to a person not intending to become a passenger on a street railway t......
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Waring v. Pennsylvania Railroad Co.
...cause of action so old as to be barred by the statute of limitations: Steffy v. Carpenter, 37 Pa. 41; Trego v. Lewis, 58 Pa. 463; Royse v. May, 93 Pa. 454; Fairchild v. Dunbar, 128 Pa. The courts below are the proper judges of the extent and application of their own rules: Snyder v. Bauchma......
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