Winder v. Northampton Bank , 1846 Pa. LEXIS 34 ( 1846 )

Sergeant, J.

— That a plaintiff, after an appeal from an award of arbitrators, cannot vary the nature of his demand by filing a new count, seems settled by former decisions. In Tryon v. Miller, 1 Whart. 11, the plaintiff had declared in trover for a bond, and the cause was referred to arbitrators, under the act of 1810, who made an award in favour of the plaintiff, from which the defendant appealed; and it was held that the plaintiff ought not, after the appeal, be permitted to withdraw the original declaration, and substitute one alleging the conversion to have been of certain instruments of writing not under seal, though of the same import as the bond. So in Reitzel v. Franklin, 5 Watts. & Serg. 35, it was determined that although the plaintiff might have joined his new count to the other, before the cause was referred; yet he could not do so afterwards, as it varied the nature of his claim, and of the evidence in regard to it, to the prejudice of the defendant and his surety on the appeal, who would thereby be subjected to responsibilities not within the scope of the arbitration or appeal. Indeed, the provision of the arbitration act, requiring the plaintiff to file a declaration before referring, could easily be evaded if it could be substantially changed after the award. Besides which, it may be added, that the act of 1806 authorizes amendments on or before trial; and I know not why a hearing before referees should not be deemed, so far as respects this point, as much a trial within the meaning of the act as a trial by jury.

It is plain that trover is a different mode of stating the plaintiff’s complaint, from an action of deceit, and is sustained by different evidence, and on different principles, and though they might be joined before the reference, yet they could not afterwards.

This renders it unnecessary to decide the other points arising on the execution.

Judgment reversed.