
    Supreme Court of Pennsylvania EASTERN DISTRICT.
    KNAPP v. HARTUNG.
    The Court permitted amendments to the original declaration, in the shape of additional counts, to be filed before trial, at the cost of the plaintiff, and no objection being made by defendant. The case was continued on a plea of surprise by defendant. More than a year afterwards, the case being again on for trial and another jury sworn, defendant moved to strike off the amendments, which motion was granted. Held, the Court erred in granting the motion.
    Error to the Common Pleas of Schuylkill county.
   Opinion of the court delivered May 17, 1873, by

Mercur J.

This was an action of tresspass. Quare clausum fregit, et de bonis asportatis. The original declaration filed, charged the defendant with entering the plaintiff’s close and with cutting down, taking away and converting oak, ash, beech and chestnut trees. After the jury was sworn, by leave of the court, upon the payment of the costs by the plaintiff, and without any exception on the part of the defendant, two separate additional counts were filed. The one charging the defendant with entering another close of plaintiff’s and taking therefrom and converting the cord wood and railroad sills. The other with taking and converting white oak, hickory and black oak logs. The defendant alleged surprise, and the case was continued, To these amended counts the defendant plead not guilty, and the statute of limitations. More than a year thereafter another jury was called. After they were sworn, upon motion of defendant’s counsel, the court struck off the first amended count, and hickory logs from the second amended count. To this the first assignment of error is made.

The substance of the plaintiff’s cause of action, was that the defendant had entered the close of the plaintiff and had cut thereon, and removed therefrom and converted his trees and lumber. They had all been cut upon a piece of land to which plaintiff had acquired title from the father of the defendant. The plaintiff charged the defendant with a series of trespasses upon it.

The act of 21st March, 1806, permitting amendments, has received a liberal construction. Under it the power of the courts extends to every informality which will affect the merits of the case in controversy, except they cannot permit an entirely new cause of action to be introduced. If the plaintiff adheres to the original cause of action, he may add a count substantially different from the declaration. Cassel v. Cooke, 8 S. & R. 268; Yohe v. Robertson, 2 Wharton 155. This right is mandatory upon the courts, Murrs Lessee v. Montgomery, et. al. 10 S. & R. 192; Sandbank v. Quigley, 8 Watts, 460.

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, upon that instrument or contract, or of the modes in which the defendant has violated it, is not an alteration of the cause of action, Coxe v. Tilghman, 1 Wharton 287; Yost v. Eby, 11 Har. 327.

This rule is not restricted to 'actions ex contractu. In an action of slander, where the words spoken were so defectively set forth as not to be actionable, the declaration may be amended by setting out a good cause of action, provided the words substituted import a change generically the same, 3 Penna. Rep. 65. In actions a* delicta the rule is the same. The foundation of the complaint laid in the declaration must be adhered to, but the mode of stating that complaint may be varied by the amendment, Clymer et, al. v. Thomas, et. al., 7 S. & R.; Coxe v. Tilghman, 1 Wharton 290. Amendments should be liberally allowed, and the test of their propriety is whether they introduce a new cause of action, Steffy v. Carpenter, 1 Wright 41.

Here the cause of action was for breaking the plaintiff’s close, and taking therefrom the timber and lumber. Whether it was taken in the form of trees, or in that of wood, railroad sills or logs, all taken from and originally forming a part of the trees cut upon the land in question, whatever the kind of tree might have been did not substantially change the cause of action.

The amendment merely pointed out the additional modes and more fully described the manner in which the defendant had committed the trespasses and aggravated the damages.

The court, however had permitted these amendments to be filed, and imposed costs upon the plaintiff in consequence thereof. The defendant made no objections but received these costs and plead to the amendments. More than a year thereafter, and after another jury had been sworn in the case, he moved to strike them off. We think' the learned judge erred in granting his motion. This view of the case will necessarily make' the evidence admissible which is set forth in the fourth assignment of error. We discover no other error in the record.

Messrs. Hughes <5r* Farquhar for plaintiff in error; John W. Ryon, Esq., for defendant in error.

Judgment reversed and a venire facias de novo awarded.  