
    Clymer and others against Thomas and another.
    
      June.
    
    exceptions and ror lie on the refusal of the CourtofCommon Pleas, to allow to the the trial of the was matter of the*Aut^fMst of March, „ by the verdict gassed against
    Noexthepermission court be low, of an ammmonhw tutes: these are within their discretion.
    In tres- . * • pass for an act, which the declaration states (o have been committed in the township of Beaver in a county, the plaintiff on the trial has a right, under the Act of the 2lst of March, 1806, to amend the declaration, by making it the township of Centre so as to correspond with the fact*
    In Error.
    ERROR to the Court of Common Pleas of Union » . *
    This was an action of trespass brought b\r Henry Clymer . r • , . . tt- ¶ and four others, the plaintilis m error, against Henry and Thomas, before a. justice of the peace, • for cutting timber of the plaintiffs, growing on their land in the county of Union. The justice gave judgment for the plaintiffs, and' t^le defendants appealed to the Court of Common Pleas. The declaration filed in the'Common Pleas laid the trespass in the township of Beaver, in the county of Union, but having fact been committed in the township of Centre, the plaintiffs moved, after the jury' were sworn, for leave to mend their declaration, either by inserting Centre instead of Beaver townshT, or by. striking, out the township altogether ; but t-he Court refused to permit the amendment, whereupon the plaintiffs excepted to their opinion. The jury found a verfor the defendants, and judgment was rendered accor- . .7 . j u dingly. . '
    
      Lashells, for the plaintiffs in error.
    The sixth section of the Act of the 21st of March, 1806, is peremptory, that when in the opinion of the Court infor■mality will affect the merits of the cause in'controversy, the plaintiff shall be permitted to amend his declaration or statement, and the .defendant may alter his plea of defence on or before the trial of the.cause. Thei amendment prayed was entirely matter of form. The motion to strike out .the township of Beaver, would have made the cause of action exactly conformable to the suit before the justice, in which no township was mentioned. In Cunningham, v. Day, 2 Serg. & R-azvle, 1. the Court permitted, an amendment, by adding a special count, after the jury were sworn, and this Court in error held the amendment to be proper, and that it ought to be allowed,,provided the plaintiff adheres to the cause of action on which the suit was brought. It cannot be pretended, that the granting or refusing an amendment .authorised by this Act, rests in the discretion of the Court. Its words, are positive, that the plaintiff shall be permitted to amend. It would be extremely injurious if the law should ■be so construed, as to leave the amendments permitted by it, in the discretion of the Court below. In the present.case the cause was lost merely for want of this amendment.
    Bradford, contra.
    Granting that the plaintiff .may have been injured by the refusal of the Court below, yet there are many things in which that may be the case, and yet no writ of error lies, 1' Binn. 226. A bill of exceptions ought to be on some point of law, either in admitting or denying evidence, or a challenge, or matter of law arising upon a fact not denied, in which either party is overruled by the Court. 1 Bac. Áb. 528.' Bull's N. P. 515. Phill. Ev. 214. A writ of error will not lie to a decision upon a matter within the discretion of the Court below. As upon a motion to set aside a nonsuit" and grant a new trial, United States v. Evans, 5. Cranch, 580. Nor upon a refusal to reinstate a cause after it has been dismissed, Welsh v. Mandeville, 7 Cranch, 152. Nor upon a judgment of nonsuit, Van. Ness v. Buel,. 4 Wheat. 74. It cannot be assigned for error, that the Court below refused a continuance of the cause after issue joined. on account of the absence of a rqaterial witness, Woods, v. Young, 4 Cranch, 237 ; or refused to grant a new trial, Marine Insurance Company v. Hodgson, 6 Cranch 217; 254. or to allow a plea to be amendtd, or a new one filed, Marine Insurance Company v. Hodgson, 9 Cranch, 217. 254. So there can be no bill of exceptions for refusing to allow the removal of an action brought in the State Court to the Circuit Court of th eUnited States, Carey v. Cobbett, 2 Ye ates, 277. Our Act of Assembly is not more operative than the English statutes of amendment and jeofail, or the rules of the common law. The amendment was not merely matter of form, to which alone the Act of 1806 extends. It went to introduce a new cause of action, viz. a trespass in- Centre township, which is a different matter from a tresspass in Beaver township.
   The opinion of the Court was delivered by

Tilghman. C. J.

Where the Court has a discretion, to permit or refuse an amendment, no exception lies to its opinion. This is the case of all amendments at common law, and some of the amendments by statute. But the most extensive and efficacious of the British statutes do not admit of a question of this kind, because they give relief, not by ordering an amendment, but by providing that the judgment shall be good notwithstanding the defect in process or pleadings. It was decided by the Supreme Court of the United States, in Woods, &c. v. Young, 4 Cranch, 237, that the refusal of the Court to grant a continuance, could not be assigned for error, because it was a matter of discretion. The same Court decided, in the Marine Insurance Company of Alexandria, v. Hodgson, 6 Cranch, 217, that the refusal to receive an additional plea, or to amend one already filed, cannot be assigned as error. And the reason given for these decisions is satisfactory ; that amendments of this kind depend more on the particular circumstances of each case, than on any precise and known rule. Upon the same principle we decided in Burd v. Dansdale's Lessee, 2 Binn. 80, that the refusal to grant a new trial could not.be assigned as error ; and we have repeatedly held, that when' the Court below decides on motions, in which it is necessary to inquire into facts not on the record, and in which the decision must rest on the discretion of. the Court, as jn motions to open judgments, there can be no redress in a Court of error, however great the injury, which either party has sustained. ■ But the case before üs is not of an amendment at common -law,.or one in which the Court was at liberty to exercise its discretion. It was the right of the plaintiffs, under the Act of the 21st of March, 18Ó6. sect. 6, by which it is enacted, that “where it appears to the Court, that there is an informality in the declaration, ' or pleadings, which will affect the merits of the cause, the plaintiff 'shall - be permitted to . amend his declaration or statement, and the defendant may alter his plea or defence, on or before the trial of the cause ; and if by such alteration and amendment, the adverse party is taken by surprise, the trial shall be postponed to the next Court*’? Now •in the present case, the substance of the plaintiffs’ case, was trespass- committed by the defendants, by cutting timber growing on the plaintiffs’ land, in.the county, of Union. It was unnecessary to name the township, but being named, .tbe plaintiff was bound by it, and estopped from proving the truth of his cause. It could not but appear to the Court, that this error, in form, was fatal to the plaintiffs’cause, and therefore it is our opinion, that the Act of Assembly was imperative in favour of the amendment. We do not say, that -in. every instance, the amendment must be granted. ■ We have heretofore decided, that where a plea in abatement is kept back until after the swearing of the jury, it was not the intention of the Act, that the- defendant should be permitted to alter his .plea,, and thus defeat the plaintiffs’ action. when a plea is kept back, which ought to have been put in, puis darreiri continuance. And many other cases, may occur^ not. within the scope and intent of the Act. But the case before us, is-a simple informality, destructive of the merits- of the plaintiffs* cause, and never discovered till after the jury were sworn. It appears to us, therefore, to- fall directly within the provision of the Act, and consequently the amendment was not matter of favour or discretion,, but of right. It is our opinion that the judgment should be reversed, and .the record returned to the Court of.Common Pleas, in order that the amendment may be. made, and the cause tried again. . ' ' ■ - ■

Judgment reversed.  