
    [Philadelphia,
    April 5, 1824.]
    NEWLIN against PALMER and another.
    in error.
    Amendments under the act of 1806, being prescribed by law, are not discretionary, but mandatory, and therefore subjects of writs of error.
    But these amendments are not to be permitted, when they introduce a new cause of action,
    A variance between the writ and declaration is matter of abatement, or special demurrer, and not of review on writ of error.
    Debt for rent, three hundred and seventy-live dollars. The declaration contains two counts, for two distinct years’ rent, three hundred and seventy-five dollars each. The queritnr demands three hundred and seventy-five dollars. Verdict for less than that sum. The declaration is good.
    A receipt for rent, by one claiming adversely to the plaintiff-, who alleges, that an event has happened by which the estate has vested in him, is not admissible in evidence, at least without some evidence of attornment.
    
    Error to the Common Pleas of Delaware county.
    In this suit, a summons in debt for three hundred and seventy-five dollars, was issued by Moses Palmer and William Trimble, the plaintiffs below, against John Newlin, the defendant. The plaintiffs declared, upon a demise by them to the defendant of a grist mill, and tract of land, in Concord township, from the lsi of April, 1814,- for one year, at the rent of three hundred and seventy-five dollars, payable quarterly'. They afterwards, with the leave of the court, filed an additional count; in which they declared, that the defendant after the expiration of the last-mentioned term, to wit, from the 1st of April, 1815, continued to occupy the demised premises as tenant to the plaintiffs, until the 1st of April, then next ensuing; whereby he became liable to pay to the plaintiffs an additional sum of three hundred and seventy-five dollars, on the 1st of April, 1816. The defendant, pleaded nil debet; to which he afterwards added the plea of payment.
    On the trial, the plaintiffs gave in evidence the will of Thomas Newlin, dated August 20, 1810; by which he gave to his grandchildren Eliza, John, Martha,and Thomas Newlim, children of his son Nicholas Newlin, deceased, their heirs and assigns, as tenants in common, his lower grist mill, situate in the township of Concord, then in possession of John Newlin; and certain other lands, particularly described in the will, subject to the disposition which he intended to make of the rents, issues, and profits, for a limited time, in favour of his daughter Edith SpeaJeman. He then devised to his friends, Moses Palmer, Thomas Marshall, and William Trimble, his upper grist mill, situate in the same county, and certain other estates, also particularly described, in trust to let out on rent the said upper mill, &c. and also the lower mill, and all the lands and premises, devised with it to his grandchildren above-mentioned, to continue the same at rent until the sum of two thousand dollars should be,raised clear of all expense, repair.s, and taxes; which sum of two thousand dollars was directed to be put' out at interest, for the serrate use of his daughter Edith' Speahm a n. After this sum had bl¡Éfi raised, the testator directed that,the use and profits of the lower rad, together with the lapels and premises, before devised to the cMpdren of his son Nicholas, should go to and be enjoyed by thera&k. -
    Aftebjaaving given in evidence s lease for a year from the plaintiffs to |hí defendant, dated AprilJst, 181.4, the plaintiffs proved that thjáfefendant had been in pqMessiomqf the mill, from the 1st of AprpjsilQlA, to the lstof dipiWj-181-5£&nd for some time afterwai’dsg 'hut for how long a time,,fííhd whfeV er subsequently to the 1st of April, 1815, he rented thq mill from the plaintiffs, or from David Trainer? jun. the guardiau-of Nicholas Neivlin’s children, did not distinctly appear from the evidence.. The plaintiffs concluded their case, by giving in evidence their, account, as trustees, under the" wijbof Thomas Newlin, settled.in the Orphans’ Court, on the 30th of October, 1815. \
    The defendant produced seven receipts, bearing date at different periods, from the Hth of August, 1815, ito the 1st of April, 1817, signed by David Trainer, jun. as guardian of the children of Nicholas Newlin, for various sums pf money, on" account of rent for the demised premises', amounting together to seven hundred and fifty dollars. It was further proved bythe defendant, that it was usual for the trustees'to give their tenants notice to quit every year; that in the year 1814, about Christmas, when they gave notice to the witness; who was one of their tenants, he inquired whether they had given notice to John Newlin, the defendant; to which they answered, that they had nothing more to do with him, as the two thousand dollars were raised, and they had given up the property to David Tpainer, jun. Evidence' to'the same effect was given by another witness. The defendant then produced a certificate of the appointment of David Trainer, jun. a.s guardian of the children of Nicholas Newlin, deceased, by the Orphans’ Court of Delaware county, qn the 25th of July, 1814, and offered in evidence the receipts above-mentioned. They were objected to by the counsel for the plaintiffs; and the court sustained the objection.
    The jury found a verdict for the plaintiffs, for three hundred afid forty-nine dollars and ninety-six cents.
    The record having been removed by the defendant to this court, several' errors were assigned, whieh were argued by,
    
      Edwards, for the plaintiff in'error,
    who cited 5 Com. Dig. 216, 217N 3 Leon. 119. Yelv. B‘. Co. Litt. 303. a. 5 Lac. Jib. 328. Pleas B. Id. 331. Pleas B. 4. And by
    
      Tilghman, for the defendants in error;
    who cited Cutbush v. Gilbert, 4 Serg. fyRawle, 556.-1 II. BJ- 249. I Doug. 3. 2 Seluf. N. P. Debt, 470.
   The opinion of the court was delivered by

Duncan, J.

The questions raised on this record, are not without their difficulties. On a contract for a specific sum, debt for rent, three hundred and seventy-five dollars, the plaintiffs declared for two distinct years’ rent, each three hundred and seventy-five dollars, in separate counts. After verdict for a less sum than three hundred and seventy-five dollars, does the verdict cure it? This is not an action for use and occupation; in which case there is only an implied contract, and no precise sum agreed on; for this is debt on an express contract, and for a certain sum. Neither is it a case of miscasting, where several sums are laid qua: attingint in toto, to a sum exceeding the queritur. There is no doubt but debt will lie for a sum uncertain, but capable of liquidation; and even then the writ must be for a sum certain, and the plaintiff may recover less, though'without a deduction; but he certainly cannot recover more. In Ingledew v. Cripps, 2 Lord Raym. 815. Salk. 659, it was held, that there is a difference. Where the duty to be recovered is certain, and entire, upon the face of the contract or specialty, the demand of more than is due is bad, and cannot be cured by verdict, or aided by entry of a remittitur. But where the duty is composed of several parcels, a demand of more than is due may be aided by a remittitur of the overplus; for the party must recover according to the proof, and not the demand. This principle is recognized by Serjeant Williams, in Note 6, to Duppa v. Mayo, 1 Saund. 285; and Mr. Justic'e Washington, in his very-able opinion, in U. S. v. Colt. 1 Peter’s Rep. 145, cites Barton v. Pomeroy, 1 Roll’s Abr. 276. Style, 175, which was debt for rent, as this is, and the plaintiff declared for more than was due by bis showing; and, on nil debet pleaded, had judgment for debt, damages, and costs. It was moved in arrest of judgment; for that the plaintiff had made an entire demand for rent, to a certain sum, when it appeared, he could not have an action for so much. Yet the court held, that he might release the surplus, and take judgment for the residue. If this had been a specialty, this had been fatal; or, had the defendant craved oyer of the original writ, and pleaded the variance, or demurred ; but this was not done, and the original writ is not before us judicially. Debt on bond, where oyer is given, a variance between the declaration and the bond may be taken advantage of on oyer, but is not matter of demurrer. Douglass and others v. Beam, 2 Binn. 76. After pleas pleaded, it is too late to take advantage of a variance between the writ and narr. 1 Munf. 76. In the King’s Bench, where the party proceeds by bill, the words at the beginning, “ of a plea that he render so much,” are superfluous, and may be rejected; and t.heie in debt on bill, the declaration would be good, although the sum demanded in the several counts, amount altogether to more than the sum first demanded.’ But in Communi Banco, and here, the debt is by original, and the decíaration always begins.by stating, that the defendant was summoned to answer the pláintiff of a plea, that'he render him so much, &c, wherefore, &c. ” Each count here contains in itself a perfect demand of a certain sum, and the. reference,is to the sum in the queritur, as if the sum in',each count was'a part; the queritur therefore-is immaterial. And I incline to think, that if the sum declared for, exceed the sum in the writ, where the.party does not recover more than is in the writ, it is more niatter of plea in abatement than in bar, and cannot be taken advantage of on error.

There is an' increasing reluctance in'courts of justice, whqi’e a cause has been tried on its merits, to Overturn a series of expen-' sive'proceedings. It is for the convenience of suiters, and the public, that the real objections should be taken at the proper season, and Nought not to be permitted «to a party to increase the expense of litigation, by proceeding to trial, when, he himself thinks there is an objection in limine to the proceeding altogether. On filing this new declaration, he might then-have pleaded in abatement, and thus have prevented great expense'to the plaintiffs, or he might have dcipurred specially; but, having gone to trial,- he has past the time of objection. But there is a solid objection to this amendment. It was granted on the trial under the act of 1806; and although amendments previous to the trial, are matters discretionary, and not subject to a revision in courts of appeal and error, yet under this act they are mandatory. It is error to refuse an amendment desired on the trial, if the amendment, is within tie provisions of the act; it is, cpnsequehtly, error to grant it, where it'is not within the provisions of the act. In Young v. The Commonwealth, 6 Binn. 88, it wás- determined, that the discretion of the court was a legal discretion, subject to review by a Court of Error. In many r'espccts, the power is very salutary; but it tends to produce carelessness and delay, vexation and expense. In the .steam boat cause, before me at the last Nisi Prius, when many days had been spent in the examination of witnesses, it was discovered there was some defect in the declaration, and application was made to amend it. - The amendment being granted, the defendant, as is usual on these occasions, would not go on to trial: thus all this time was lost, ánd much cost incurred. But, on the whole, the provision is productive of more good than evil. In the case of a plaintiff, he might suffer a nonsuit, and therefore only be exposed to costs and delay; but, in the case of a plea by defendant, he might be deprived of1 a just defence by a defect in pleading. But ff it. were allowed to a party, under the leave to amepd, to set out a new\ cause of. action altogether, a single suit might be a business for .life. The'act was intended-to correct matters of form, standing in" the vvay of the merits. Ebersoll v. Krug, 5 Binn. 53. Shock v. M'Chesney, 4 Yeates, 507. Farmers and Mechanics’ Bank v Israel, 6 Serg. & Rawle, 295. And in Cassell v. Cooke, 8 Serg. & Rawle, 286, it.was determined, that the alteration is confined not to mere matters of form; but in its terms, embraces every thing which'will áffeet the merits of the cause in controversy. The true criterion is, whether the alteration, in the proposed amendment, is a new and different matter, another cause of action; or whether it is the same contract or injury, and a mere permission to lay if in a manner which the plaintiff considers will best correspond with the nature of his complaint, and with his proof and the merits of his case. Here the matter was entirely new: it was a continuance of possession for another year by the permission and sufferance of the plaintiff. A tacit renovation of the old contract, by continuing for anotheryear. The first declaration gave him no notice of preparation for the second year. As well might the plaintiff have added a count on a bond. The judgment is for this cause reversed. But as it is made the duty of this court to decide on all the points made below, and the court think it will best answer the purpose to award a venire facias de novo, it is proper to give an opinion on the bill of exceptions, with respect to the receipts from David Trainer, guardian of the children of Nicholas Newlin, to whom the < ultimate estate was devised, after the plaintiffs, the trustees under the will of Thomas Newlin, had raised, from the rents and profits, two thousand dollars. Some evidence was given of declarations of the trustees, that they had raised that sum, previous to the defendant’s entering on his second year, and had given up the property to David Trainer. If the defendant had proved that he had attorned to Trainer, or that Trainer had leased to him for that year, I incline to think, that the receipts would have been admissible; but, as no evidence had been given of- this, it would seem to be a dangerous species of testimony. To admit these receipts, would be putting it in the power Of a party to make evidence for himself; and it may be, that the receipts, though purporting to havé been dated before, were not given until after the commencement of the action; and, as Trainer was a stranger, ought to have been proved by other evidence; these receipts, which were a kind of ex post facto evidence, of a lease from 1st of Jlpril, 1815, making the evidence of a previous tenancy. Under any circumstances, should this cause be tried again, actual payment of the money would be better evidence than the receipts; as the authority to receive the rent is called in question, and the allegation made, that the whole is an understanding and preconcerted plan between the defendants and Trainer, to prevent the raising of the two thousand dollars, directed by the will of the testator to be raised, and which, it is averred, never was raised.

Judgment reversed and a venire facias de novo awarded.  