23 Pa. 327 | Pa. | 1854
The opinion of the Court was delivered, by
The Act of 1806, relative to the amendment of pleadings, declares that “ when, in the opinion of the Court, an informality in a declaration or plea 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.” The effect of this Act has been to make amendments, which before were discretionary, a matter of right, which it was error to refuse: 13 Ser. & R. 248; 6 Barr 88; 8 Watts 461, &c. Reason and justice require that the defendant should at least be
The defendant claimed a set-off for the value of certain quantities of wheat delivered by him to the plaintiffs at different times. A receipt was taken at the time each load of wheat was delivered, specifying the date and quantity. In most of them it was stated that the wheat “ was to remain in store for further ordersbut in some of them it was simply said that it was to “remain in store.” This difference was not material, because wheat deposited “ to remain in store” was as much subject to the “ further orders” of the owner, as if these words had been expressed in the receipts. In giving the notice of set-of, the defendant furnished the plaintiffs with an accurate copy of each receipt. When these were offered on the trial, coupled with evidence that the plaintiffs appropriated the wheat to their own use and never paid for it to the defendant, the evidence was rejected. The reason for this does not appear
Judgment reversed and venire facias de novo awarded.