1 Whart. 11 | Pa. | 1835
The opinion of the court was delivered by
Two errors have been assigned, — First, that the District Court refused to permit the plaintiffs to read in evidence to the jury, on the trial of the cause, an offer made in writing and signed by them while the cause wras pending before arbitrators, and afterwards filed in the prothonotary’s office, with and attached to the award of the arbitrators; whereby they agreed that if an award should be made in their favour, the same and the judgment thereon to be rendered, should be l'eleased upon payment by the defendants of all that the plaintiffs had paid and might thereafter be compelled to pay, by reason of their having been sureties for the late Jacob G. Tryon, sheriff of. the County of Philadelphia; and that upon payment by the defendants of all sums of money, which -the plaintiffs had paid and might thereafter be compelled to pay,.the judgment in this case should be released ; second, that the court also -refused to permit the plaintiffs to withdraw the declaration filed by them and to file a new one then exhibited to the court.
In regard to the first error it is difficult, if not impossible to per
As to the second error, it is laid down as a general rule in 5 Bac. Abr. tit. Plea and Pleading, page 330, for which is cited Lil. Reg. 408, that the plaintiff after plea pleaded, or after the end of the second term, shall not add a new count to his declaration, under pretence of amending it. The same rule is laid down also in Styles’ Register, tit. Declaration, page 206. So in Cope v. Marshall, Sayre Rep. 236, .it was held to be contrary to a general rule of law, to permit an amendment which amounted to the adding of a new count, after the action had been commenced two terms; and it was further held to be a general rule of law, “ that an amend
Now, in the case before us, the action had not only been commenced, and the declaration filed two years, and more than nine terms before the plaintiffs asked leave to file a new declaration and to withdraw the old, but they, after filing their declaration, had by a rule entered at their instance for that purpose, taken the cause out of court and tried it before arbitra tors, who made an award in their favour against the defendant. The latter, after paying all the costs which had accrued upon the action, as he was bound to do, in order to obtain an appeal from the award, brought the cause back by appeal into, court, where issue was joined upwards of a year before the application was made to amend; and although the statute of limitations would have barred any new action that the plaintiffs could have brought for the cause which they w’ished to have introduced upon the record, by filing a new declaration at the time of their application, and it may therefore be said they came within the exception established in the cases already mentioned; yet, it is conceived that the plaintiffs by filing their declaration, which contained a good cause of action set forth in perfect form, and then referring that cause so stated to the decision of arbitrators, who made an award in their favour, put it out of the power of the court to permit them to substitute a now and different cause of action, to be tried in court upon the appeal, from that decided on by the arbitrators. It is manifest the court could not have
But even taking it that there had been no insuperable objection to the count, and allowing the amendment, I am still inclined to think that their refusal to do so would not have been the subject of revision and correction in this court. The amendment asked for, was not- one merely of form, but of substance ; it was to place on
The judgment is affirmed.