
    [Philadelphia,
    February, 6,1836.]
    COXE and Others, against TILGHMAN and Another.
    1. In an action of covenant, amendments of the declaration assigning new breaches of the same instrument on which the original counts were founded, and alleging performance on the part of the plaintiff, in another mode than was alleged in the original counts, are admissible.
    2. In actions ex contractu, so long as the plaintiff adheres to the original instrument or contract on which the declaration was founded, an amendment making an alteration of the grounds of recovery on that instrument or contract, or of the modes in which the defendant has violated it, is admissible. Per Sergeant, J.
    3. In actions ex delicto, the rule is the same: The foundation of the complaint laid in the declaration must be adhered to; although the mode of stating that complaint, may he varied by an amendment. Per Sergeant, J.
    This was an action of covenant brought in this Court by Charles S. Coxe, Francis S. Coxe, and Henry, S. Coxe, executors of the last will, &c., of Tench Coxe deceased, against Benjamin Tilghman and Elizabeth Tilghman, executors of the last will, &c., of Edward Tilghman deceased, upon an agreement under seal dated the 25th day of July, 1806, between Tench Coxe and Edward Tilghman, by which the latter covenanted to purchase certain lands of the former.
    The declaration contained four counts.
    1. The first count sent forth that it was covenanted and agreed between the said Tench Coxe and Edward Tilghman, that in consideration of the covenants of thesaid E. T., the said T. C. would convey or cause to be conveyed to the said E. T., or to such person as he should appoint, the said T. C.’s right to certain lands in the State of Pennsylvania, amounting to 16,800 acres; a certain portion of which was within the boundaries or lines, and a certain other portion without the boundaries or lines of a certain selection of 45,000 acres of land, made by the said Edward Tilghman, Wm. Cramond, Adam Kuhn, and Joseph Thomas, out of a larger tract claimed by James Wilson deceased: that the said E. T. covenanted and agreed that he would designate before the first day of May, 1807, what quantity of the said 16,000 acres was not within the said boundaries and lines, and what was within them, and would also before that day pay to the said T. C. 25 cents for every acre of 2-3rds of such quantity of the said 16,800 acres, as he should show not to be within the said boundaries and lines, and also pay the said T. C., 25 cents for every acre for 2-3rds of 12-45ths, and for every acre of 14-45ths, of such quantity of the same as he should show to-be within the said boundaries and lines: Averment that though the said T. C. was always ready and willing to convey, &c., yet the said E. T. did not well and truly designate on or before the said first of May, 1807, what quantity was within and what, was without the said boundaries, <fec., and did not pay the said sum of 25 cents for every acre as aforesaid.
    2. The second count set forth the covenant by T. C. to convey as before, and that the said E. T. covenanted to pay 25 cents per acre as in the first count: Averment, that the quantity of 5600 acres was within, and the like quantity without the said boundaries; that the said T. C. was ready and willing to convey: and breach as in the first count.
    3. The third count set forth the covenant by T. C. as before; that the said E. T. covenanted and agreed that as to l-3d of the said 16.800 acres, he would well and truly pay the said T. C. 25 cents for every acre thereof, together with interest from the 15th of August, 1793, so soon as he, the said E. T., could, after the 25th of July, 1806, legally ascertain whether any part, and if any, how much of the said l-3d was taken away by elder surveys, other than those in which he the said E.T. was cqncerned: Averment, that no part of the said l-3d part was taken away by elder surveys, other than those in which the said E. T. was concerned: and that the said E. T. did afterwards, viz. on the 25th of July, 1807, legally ascertain that no part of the said 16,800 acres, was - taken away by elder surveys other than those in which the said E. T. was concerned: Breach, that the said E. T. did not pay the said 25 cents for every acre of the said l-3d, together with interest, (fee., so soon as he could legally ascertain whether any'part was taken away by elder surveys, <fec.
    4. The fourth count set forth the covenants by T. C. and E. T., as .in the third count. Averment, that only 50 acres of the said l-3d part of the 16,800 acres, were taken awray by elder surveys, other than those in which he the said E. T. was concerned; and that the said E. T. afterwards, viz. on the 25th of July, 1807, legally ascertained the same. Breach, that the said E. T. did not pay the said 25 cents for every acre of the said l-3d part, after the said 50 acres were taken away by elder surveys, (fee.
    Two additional counts were afterwards filed.
    5. The fifth count set forth the covenant by T. C., to convey 16.800 acres of land a certain part of which was supposed tobe within and a certain part without the boundaries and lines aforesaid, and that the said E. T. covenanted to pay 25 cents for every acre of 2-3ds of 12-45ths, and for every acre of 14-45ths of such quantity of the said 16,800 acres as should be within the boundaries and lines aforesaid : Averment, that the whole of the said 16,800 acres were within, and no part thereof without the said boundaries and lines. Breach, that the said E. T. did not pay the said 25 cents for every acre, <fcc.
    6. The sixth count set forth the covenant by Coxe as in the fifth count, with some variations.
    
      The defendants pleaded
    1. JVon est factum.
    
    
      2. That by the said agreement the said T. C. covenanted on or before the first of May, 1807, to- designate what proportion of the 16,800 acres was within and what was without the said boundaries. Averment, that the said E. T. was willing, &c., to perform the covenants on his part, but the said T. C. did not designate what proportion, &c.
    3. That by the said agreement the said T. C. covenanted, that on or before the said first of May, 1807, he would furnish the said E. T. with the means of ascertaining what proportion of the said 16,800 acres, was within and what was without the said boundaries: Averment, that the said E. T. was willing, &c., if the said T. C. would furnish him with the means, &c.
    4. To the second count, that a certain quantity, viz. 5,600 acres was not within the said boundaries, and that a certain quantity, viz. 5,600 acres was not without the said boundaries, &c.
    5. To the third and fourth counts: That by the said agreement the said T. C. covenanted (as soon as conveniently and legally might be,) to ascertain and give notice to the said E. T. how much of the said 16,800 acres was taken away by elder surveys, other than those in which the said E. T. was concerned: Averment, that the said E. T. was willing, &c., to perform the covenants on his part, if the said T. C. would legally ascertain and give notice, &c.
    6. To the third count: That the said E. T. did not and could not on the 25th of July, 1806, or at any other time, legally ascertain that no part of the said l-3d part of the 16,800 acres was taken away by elder surveys, other than those in which the said E. T. was concerned : concluding to the country.
    7. To -the third and fourth counts: That by the said agreement the said T. C. covenanted (as soon as conveniently and legally might be,) to furnish the said E. T. with the means of ascertaining how much of the said 16,800 acres was taken away by elder surveys, other than those in which the said E. T. was concerned: Averment, that the said E. T. was willing, &c., to perform the covenants on his part, if the said T. C. would furnish him with the means of ascertaining, &c.
    8. To the fourth count: That the said E. T. did not and could not on the 25th of July, 1806, or at any other time legally ascertain that a small part of the said l-3d part of the said 16,800 acres, viz. 50 acres was taken away by elder surveys, other than those in which the said E. T. was concerned ¡concluding to the country.
    9. That before the execution of the said agreement, viz. on the 28th of March, a. d. 1801, the said T. C. by indenture of that date, granted and conveyed the said 16,800 acres of land, and all his title and interest in the same, to William Tilghman and others, and their heirs and assigns, upon certain trusts and conditions in the said indenture expressed, &c.
    
      10. Performance; with leave to give the special matters in evidence.
    11. No assets. 12. Plene administraverunt prater, fyc. and 13. Debts of a higher nature, &c. &c.
    To the 1st and 4th pleas the plaintiffs replied the similiter.
    
    To the 2d, 3d, 5th, 6th and 7th pleas, they demurred generally. To the 8th a special demurrer was filed, setting out for cause that the defendants have in the said plea offered to put in issue, a matter not properly issuable, that they have not in said plea denied, confessed, or aven’ed the substantial matter in the breach of covenant in the fourth count alleged, and that the plea ought to have concluded with a verification and not to the country.
    To the 9th plea the plaintiffs replied that the agreement with the said E. Tilghman was made with the consent and approbation of the assignees of said T. C., which was well known to said E. T., and that all the right, title and interest of said assignees, have become vested in C. S. Coxe, one of the plaintiffs, who has always been ready and willing to convey to B. Tilghman, one of the defendants in trust for the heirs, &c., of the said Edward Tilghman.
    To the 11th, 12th and 13th pleas, replications of assets ultra, &c.
    On the 9th of December, 1835, a rule was obtained to show cause why the plaintiffs should not have leave to withdraw the declaration on the record, and to file a new one.
    The declaration proposed to be substituted, contained 10 counts.
    1. The first count set forth the covenant to convey 16,800 acres,- and that as to one-third thereof, payment should be made when it was ascertained, (which the said E. T. was to do as soon as conveniently and legally might be,) whether any, and how much was taken away by elder surveys, other than those in which said E. T. was concerned, and that the payment should be made in manner following, viz. for so much of the said one-third as should remain after elder surveys, other, &c. and as was not within the selection of45,000 acres, the said E. T. agreed to pay the said T. C. when it should be ascertained as aforesaid, 25 cents for each acre with interest, from the 15th of August, 1793, and for so much as should remain after elder surveys, other, than, &c., 25 cents with interest as aforesaid, for each acre of 12-45ths, and of 14-45ths, together 26-45ths thereof: Averment, that the said E. T. ascertained on the 25th of July,-l 806, that no part of the said third was taken away by such survey, other than, &c., and that no part of the same was within the said selection; that the said T. C. in his lifetime was always willing to convey, or cause to be conveyed, &c., and that the said plaintiffs, since his death, have been always willing to cause to be conveyed, &c.
    2. The 2nd count set forth that the said E. T. undertook to ascertain and make known to the said T. C., within a reasonable and short time, the lines and boundaries of the said selection of 45,000 acres, and what part of the third was within them: Averment that the same might have been ascertained before the 1st May, 1807, but the said E. T. did not ascertain, &c.
    3. The 3d count set forth that the said E. T. covenanted to pay the said T. C. the sum of 25 cents with interest, &c. for every acre of 2-3ds of 12-45ths and of 14-45ths of 16,800 acres, that was within the boundaries, áre. of the said 45,000 acres, &c.: Averment, that all the said 16,800 acres were within the said selection.
    4. The 4th count set forth that the said E. T. covenanted to pay the said T. C. the sum of 25 cents, with, áre. for every acre of 2-3ds of 12-45ths and of 14-45ths of 16,800 acres that was without the boundaries, áre.: Averment, that all the said 16,800 acres were without the said selection.
    5. The 5th count set forth the covenant of E. T. as in the 3d count, and that the said E. T., would within a reasonable and short time, viz. before 1st May, 1807, ascertain the said lines and boundaries, and the quantity of the said 16,800 acres which fell within them : Averment, that it was convenient to the said E. T. to ascertain, áre. before the 1st of May, 1807, &c.
    6. The 6th count was the same as the 5th, except that the covenant was as to the quantity of the 16,800 acres which fell without the said lines and boundaries.
    7. The 7th count set forth that the said E. T. covenanted that the said Adam Kuhn would well and truly pay the said Coxe, 25 cents with interest, from the 15th of August, 1793, for every acre of 2-3ds of 7-45ths of such quantity of the said 16,800 acres, as fell within the said selection : Averment, that all the said 16,800 acres were within the said selection, and that the said Adam Kuhn did not pay the said 25 cents, áre.
    8. The 8th count set forth that the said E. T. covenanted that the assignees of Joseph Thomas, would within a reasonable time, viz. on or before the 25th of July, 1807, pay the said T. C. 25 cents, with interest, &c. for every acre of 2-3ds of 12-45ths of the said land within the said selection: Averment, that all the said 16,800 acres were within the said selection, and that the assignees of the said Joseph Thomas did not pay the 25 cents, &c.
    9. The 9th count set forth that the said E. T. covenanted that the assignees of Joseph Thomas would within a reasonable time, viz. on or before the 25th of July, 1807, pay the said T. C. 25 cents, with interest, áre. for every acre of l-3rd of 12-45ths of the said land as should remain after elder surveys, other than, áre. and as should fall within the said selection, áre. Averment, that no part of the said 16,800 acres was taken away by elder surveys, other than, áre, and that the whole thereof was within the said selection, áre. and that the assignees of the said Joseph Thomas did not pay, áre.
    
      10. The 10th count set forth that the said E. T. covenanted that Adam Kuhn would, within a reasonable time, viz. on or before the 1st of May, 1807, pay the said T. C. 25 cents, (with interest, &c.) for every acre of l-3rd of 7-45ths of so much of l-3rd of the said 16,800 acres as should remain after elder surveys, other than, &c. and was within the boundaries of the said selection: Averment, that no part of the said l-3rd of the said 16,800 acres was taken away by elder surveys other than, &c. and that the whole was within the said boundaries; and that the said Adam Kuhn did not pay the said 25 cents, &c.
    The rule to show cause why the amended declaration should not be substituted, coming up;
    Mr. Ingraham in support of the rule referred to Wharton’s Digest,
    
    title Amendment, pi. 20 to pi. 28; Diehl v. M‘Glue, (2 Rawle, 337.) Lee v. Wright, (1 Rawle, 149). Commonwealth v. Mechling, (2 Watts, 130). Proper v. Luce, (3 Penn. Rep. 65).
    Mr. W. Rawle, Jr. and Mr. B. Tilghman, contra,
    argued that at least the four last counts of the amended narr. were inadmissible, since they contained a new cause of action, viz. an alleged covenant to pay for Adam Kuhn and for the assignees of Joseph Thomas. Besides, in this case there has been an award of arbitrators under the old declaration, from which the defendants appealed; and this brings the case within the principle of Tryon v. Miller decided at this term, {ante, p. 13.)
   The opinion of the Court was delivered hy

Sergeant, J.

It was settled soon after the passing of the Act of the 21st March, 1806, that the plaintiff is entitled to amend his declaration or add a new count at any time before or during the trial of the cause, provided he do not introduce a new cause of action. But what amendment does introduce a new cause of action, has given rise to frequent controversies; and in many instances the amendment has been refused as not coming within the limit prescribed. An examination of the decided cases will show that in actions ex contractu, so long as the plaintiff adheres to the original instrument or contract on which the declaration is founded, an alteration of the grounds of recovery on thát instrument or contract, or of the modes in which the defendant has violated it, is not an alteration of the cause of action. In an action on a policy of insurance, when the plaintiff declared on losses by capture by an enemy and perils of the sea, the court permitted an amendment by adding a count for a loss by barratry. The object of the action, says Tilghman, C. J. was to recover for a loss covered by the policy, and this amendment did not go out of the policy. Anon, cited by Tilghman, C. J. in Rodrigue v. Curcier, (15 Serg. & Rawle, 83). So in Cassel v. Cooke, (8 Serg. & Rawle, 268,) in debt, the declaration stated an agreement of the 10th August, 1813, that Cooke should sell to Cassell an estate, for which Cassell covenanted to pay $325 per acre, viz. one-third on the 10th of April, 1814, one-third on the 10th of April, 1815, and one-third on the 10th of April, 1816, without interest. Cook covenanted to deliver to Cassell a good and sufficient deed on the 10th April, 1814, when Cassell was to give his bond for the remaining two-thirds, with security, if required. Possession was to bé given to Cooke on the 10th of April, 1814, and the parties were bound in a penalty of $100,000. Averments of performance by plaintiff. After the jury were sworn and some progress made in the trial, the plaintiff requested leave to add a new count, setting forth that the deed was not executed on the 10th April, 1814, at the defendant’s reque'st, in consequence of his inability to comply with his covenants; that it was understood the articles remained in force, and the defendant paid various sums to the plaintiff in part performance; that on the 13th January, 1816, a good and sufficient deed was executed, which the plaintiff tendered to the defendant on or about the 31st of January, 1816. This was objected to by the defendant, but admitted; and on error brought, was held to be right. “ It was,” says Mr. Justice Duncan, “ the assignment of a breach of the same covenant, on the same instrument, to be covered by the same penalty.” So in Shannon v. The Commonwealth, (8 Serg. & Rawle, 444,) it was held that in an action on a sheriff’s bond, the plaintiff might amend his declaration by assigning new breaches of the condition of the bond. “ The new breach,” says C. J. Tilghman, “ related to the neglect or non-performance of Shannon’s duty as sheriff.” And in that case, the Chief Justice states the very point now in question to have been already decided, for he says, “ it has been determined that under our act of assembly, the Court may permit the plaintiff in an action of covenant, to assign new breaches.”

In Cunningham v. Day, (2 Serg. & Rawle, 1,) the declaration was in indebitatus assumpsit for money had and received. It appeared on the trial that the plaintiff gave the defendant a mare and $25 in exchange for a horse. The horse turned out to have been stolen, and the plaintiff was obliged to give him up to the owner. The defendant had sold the mare for a tract of land and $25. The Court holding that the plaintiff could only recover the $50 received by the defendant without interest, the plaintiff had leave to amend by a new count founded on the special contract. This on error was held right, and, Tilghman, C. J. says, “ this was no change of the cause of action. The plaintiff had been mistaken in the form of his declaration, but it was the injury from the stolen horse for which he sought redress.” So where the plaintiff declared in assumpsit for breach of promise to convey land, it was held he might amend by setting forth again the breach of contract, blended with complaints of fraud. Carter v. M‘Michael, (8 Serg. & Rawle, 441). In Rodrigues v. Curcier, (15 Serg. & Rawle, 81,) the wrong complained of by the plaintiff, and for which he sought redress, was the defendant’s misconduct as his agent in the sale of certain cottons consigned to him. This misconduct was set forth in various forms by the original declaration, and the plaintiff asked leave to add several other forms tending to the same point. The substance of the same complaints was preserved in all those forms; that the plaintiff had been injured by the defendant’s mismanagement in the business committed to him; and the amendment was allowed. ' In Gratz v. Phillips, (1 Binn. 588,) the writ and narr. in account-render, stated the defendant as bailiff and receiver of A. A new count was permitted, describing the plaintiff as surviving partner, and his interest as having been held jointly with a certain B. deceased.

On the other hand, where a new instrument or contract is introduced as a ground of action, the amendment is not permitted. Thus in Farmer’s Bank v. Israel, (6 Serg. & Rawle, 294,) the suit was against the defendant as indorser of two promissory notes. It appeared on the trial that the notes were not due; and it was held, that an amendment introducing five other notes entirely different, was not admissible. So in Newlin v. Palmer, (11 Serg. & Rawle, 98,) the plaintiffs declared on a demise by them to the defendant of a 'grist mill and tract of land, from the 1st April, 1814, for one year, at the rent of $375. Afterwards, by leave of Court, they filed an additional count, alleging, that the defendant after the expiration of the last mentioned term, viz. from the 1st of April, 1815, continued to occupy the demised premises as tenant to the plaintiffs until the 1st April, 1816, whereby he became liable to pay an additional $375. “ Here,” says Mr. Justice Duncan, “ the matter was entirely new, it was a continuation of possession for another year by the permission and sufferance of the pláintiffs. The first declaration gave the defendant no notice of preparation for the second year; as well might the plaintiff have added a new count on a bond;” and the judgment was reversed. In Canal Company v. Parker, (4 Yeates, 363,) the declaration having laid that the defendant was indebted to the plaintiffs for subscription to a canal company with interest; a new count was refused, which demanded the penalty of five per cent per month, under the act incorporating the company. In Diehl v. M‘Glue, 2 Rawle, 334, the plaintiff’s declaration in assumpsit contained counts for goods sold and delivered with a quantum valebant, work and labor with a quantum meruit, money had and received, money paid and expended. On the trial the plaintiff, to introduce evidence inadmissible under the counts as they stood, offered an additional count, stating a special agreement and promise by the defendant to find the plaintiff constant employment at coach or carriage trimming at a certain rate according to the kind of work, for such length of time as should be mutually agreed on, and breach thereof, which the Court below received. This court, on error, held that it was improperly admitted, because it introduced a new cause of action.

In actions ex delicto, the rule is the same. The foundation of the complaint laid in the declaration must be adhered to, although the modes of stating that complaint may be varied by an amendment. Thus in Clymer v. Thomas, (7 Serg. & Rawle, 178,) in trespass, the declaration stated the act to have been committed in the township of Beaver, in the county of Union. The plaintiff was allowed to amend the declaration after the jury sworn, by inserting the name of Centre township instead of Beaver to correspond with the fact. The substance of the plaintiff’s case, says Tilghman, C. J. was a trespass committed by the defendants by cutting timber on the plaintiff’s land in Union county. So in slander, where the words in themselves are not actionable, but are laid as spoken of the plaintiff’s trade or calling, the trade may be amended. Rodrigue v. Curcier, (15 Serg. & Rawle, 83.) But in trover for an instrument under seal, an amendment is not allowable by introducing a count for another and different instrument not under seal, constituting a simple contract. Tryon v. Miller, (ante, p. 11.) To the same effect is the case of Keasby v. Donaldson, (2 Bro. 103), that in trover leave will not be granted to add other articles. And the plaintiff having declared for slander', shall not introduce trover or malicious prosecution, or libel. 4 Yeates, 507.

The effect of the act of assembly, says Mr. Justice Gibson, is to authorize the Courts to allow amendments, after swearing the jury, as fully as they could do at common law before that period, and also to enable a Judge at Nisi Prius to grant amendments, when the cause is about to be tried, which formerly could only be permitted in bank. Farmers and Mechanics Bank v. Israel, (6 Serg. & Rawle, 294). Wilson v. Hamilton, (8 Serg. & Rawle, 240.) At common law the rule was, that after the end of the second term, the plaintiff was allowed to add a new count, or amend his declaration, only where the cause of action was substantially the same, but not for a different right of action. 2 Tidd’s Prac. 754. The reason of this rule was that the plaintiff was obliged to declare within two terms, and a new right of action was considered as a new declaration. But amendments in, form or in substance, not varying the cause of action, could be made at any time, whilst the pleadings were in paper, and before they were entered of record, lb. Our act carries this right of amendment down to the very period of trial itself; and the construction has uniformly been, that while it nev.er intended to permit the plaintiff to change the cause of action, yet any amendment short of that, was within the letter and spirit of the act, whether in matter of form, or in matter of substance affecting the merits of the case.

In the present case the action was covenant on an agreement under seal, dated the 25th of July, 1806, between Edward Tilghman and Tench Coxe, by which the former covenanted to purchase certain lands of the latter.

The original declaration contained four counts; and two additional counts were afterwards filed. All these set out in various forms a breach of one part of the agreement. The defendants craved oyer; and the agreement being set out, they put in ten pleas, to which the plaintiff replied or demurred. The plaintiff’s motion now is for leave to file ten new counts; the defendant’s, objections are, that the 1st, 2d, 3d, 4th, 5th and 6th contain assignments of breaches similar to those in the former counts, except that the 1st count avers that Tench Coxe was always ready to convey or cause to be conveyed— and that his executors after his death offered to cause the said lands to be conveyed to the executors or heirs ofE. Tilghman. The 7th, 8th, 9th and 10th counts of the new declaration are said to contain a new cause of action, because they set out a breach of another part of the agreement not alluded to at all in the old counts, namely of covenant by E. Tilghman, that Dr. Adam Kuhn would pay T. Coxe 25 cents per acre, for certain share of the lands, and also that the assignees of Joseph Thomas would pay the like sum for another share.

It is manifest from the principles already stated, that these amendments are allowable. The change in the first count is but another mode of alleging performance by the plaintiffs. The 7th, 8th, 9th and 10th, assign new breaches, but the plaintiff adheres to the same instrument on which the former declaration was founded. No other agreement is suggested or pretended; and it is set out at length by the plaintiff on the prayer of oyer made by the defendants.

Leave granted to file the ten new counts.  