Royse v. May

Mr. Justice Mercur

delivered the opinion of the court, May 3d 1880.

The first assignment o.f 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 ease, 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 appealed.

The amendment allowed was to change and contradict the averments in the declaration which expressly admitted the tenancy and the specific sum due and in arrear for rent, and to aver that such was the allegation of Barnes only, and not the admission of the defendant in error. The substantial cause of action under the original declaration was an excessive distress while the defendant in error was the tenant of Barnes, and while a sum specified was due and in arrear for rent. Every part of this was changed by the amendment. It substantially averred that he was not the tenant of Barnes; that he did not owe him any rent; that it was not a case of excessive distress, but one in which no right of distress, for any sum, existed. This was a "substantial change of the cause of action, and ought not to have been allowed. The first assignment is sustained.

In view of the maimer the case was submitted to the jury, we see no error in the second and sixth assignments. The third and fourth assignments are not according to the rules, and must be disregarded.

In that portion of the charge covered by the fifth assignment the learned judge charged substantially that, unless the plaintiif in error proved the tenancy and certain rent reserved and in arrear, their verdict must be “ for double the value of the property sold.” The second count in the declaration did not conclude against the form of the statute, nor was there any claim therein for double damages. It was not, therefore, under the statute giving double damages. Hence, it follows under the pleadings, it was error to fix the measure of damages at double the value of the property: Reese v. Emrick, 6 S. & R. 286. This assignment is, therefore, sustained.

Judgment reversed, and a venire facias de novo awarded.