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P. L. 63.

and of the poor placed under their care: Provided, however, That in such election 18 May 1878 § 1. no elector shall vote for more than three candidates for members of such board of directors; and the five candidates who shall have the highest number of votes shall be declared elected, and shall constitute the board of directors for the home of the destitute and the poor of the county, and shall serve for the term of two years, and shall be chosen every second year thereafter.

18. Every member of the board of directors elected in the manner aforesaid shall appear on the first Monday in January after said election, at the county seat, or, if appointed by the court, within ten days after due notice, and before he enters upon the duties of said office, take an oath or affirmation as prescribed by the first section of the seventh article of the constitution; and the members of the board of directors qualified as aforesaid are hereby authorized to administer oaths or affirmations, where it shall be necessary, in relation to the duties of their office.

Ibid. § 2.

Oath of office.

24 June 1885. P. L. 163.

serve for unex

19. Whenever a vacancy has occurred in the office of director of the poor, elected by the people since the last general election, by death, resignation or otherwise, or shall hereafter so occur, the director elected, at the next general election to fill such Director elected to vacancy, shall serve for the unexpired term of the person whose death, resignation fill vacancy to or other act, caused such vacancy; and on each of the ballots, voted to fill such pired term. vacancy, shall be written or printed the words, "For the unexpired term," over the name of the candidate for such unexpired term; and all acts or parts inconsistent herewith are hereby repealed.

P. L. 63.

20. The amount necessary to defray the annual expenses of the home of the des- 18 May 1878 § 8. titute, shall be paid by the county treasurer, on warrants drawn by the county commissioners, upon orders presented to them, signed by the president of the board of Payment of exdirectors and countersigned by the secretary, and to which the corporation seal shall penses. be attached: Provided, however, That such orders shall be accompanied by an itemized account, which shall have been probated, stating the specific purpose of such expenditure. And it shall be the duty of the county commissioners to keep the accounts of the home of the destitute in a set of books to be provided for that purpose, and said accounts shall be audited by the county auditors, at the same time and in the same manner as the other accounts of the county are audited; and they shall publish annually a detailed statement of the receipts and expenditures of the home of the destitute, at the same time and in the same manner as annual county statements are published.

Ibid. § 4.

21. The board of directors shall provide books for the superintendent of the home of the destitute, in which he shall keep an account of all expenses of the Accounts to be same, as well as all the receipts thereof from all sources whatsoever, showing kept. the accurate cost of all purchases, in duplicate orders, the original of which shall be retained in a book prepared for that purpose; and no rebates or drawbacks shall be received, allowed or retained by any officer of said home of the destitute; and all books and accounts shall be subject to the inspection of tax-payers of the county, at To be open to inall times during business hours.

spection.

Ibid. § 5.

22. The board of directors shall meet on the first Monday of each month, to transact such business as may be placed before them, and at such other times and Stated meetings in such manner as they may determine, when they shall visit the departments and duties of diand see that the inmates are comfortably supported, and hear all the complaints, rectors. and redress or cause to be redressed all grievances that may happen, by neglect or the misconduct of any person or persons in their employment, or in any other

manner.

23. The annual salary of each member of the board of directors shall be as follows: In counties containing 50,000 population or less, $100; in counties containing over 50,000 and less than 100,000, $200; in counties of over 100,000, $250; and no other allowances whatsoever shall be made for travelling or any other expenses.

Ibid. § 6.

Salaries.

Ibid. § 7.

24. The members of the board of directors of the home of the destitute or poorhouse, in counties where such boards are in existence at the time when the pro- Terms of existing visions of this act shall go into effect, and whose terms of office shall not have officers not to be expired at the first election for choosing the board of directors, are hereby declared affected. members of said board, until their terms shall have expired: Provided, however, That only three members shall then be elected, and two candidates shall be voted for by each elector.

25. The board of directors shall appoint a superintendent of the home for the 18 May 1878 § 8. destitute, who shall be of good moral character, and well acquainted with the rules Appointment of of hygiene, and of proper business qualifications, and who shall have been a resi- superintendent. dent of the county in which he is chosen at least for a period of five years, and shall serve until the term of the board appointing said superintendent shall expire, unless sooner removed, for reasons satisfactory to the board of directors. It shall His duties. be his duty to take charge of the home for the destitute and provide for the inmates the necessaries of life, and he shall have the charge of them and of all properties, industries and farming operations, and superintend and control the same, under the rules and regulations established by the board of directors for the government of the home; he shall keep all accounts, and make a full report to the

P. L. 63.

15 May 1878 § 8. board of directors as required, annually, or oftener, if the board shall desire him to do so; his salary shall be fixed by the board of directors at a specified amount annually, before he shall enter upon the discharge of his duties.

Ibid. § 9.

Physician.

Ibid. § 10. Dispensatory.

Ibid. § 11. Poor districts.

Ibid. § 12. Repeal.

10 April 1879 § 1. P. L. 19.

Directors may rebuild houses destroyed by fire.

Ibid. § 2. County commissioners to levy tax.

Ibid. § 3.

Expenses.

Ibid. § 4.

Plans and con

tracts to be ap

26. The board shall appoint a competent physician and surgeon, who shall be a graduate of a regularly authorized school of medicine and surgery, of good moral character, and a resident of the county, for not less than two years, (m) unless sooner removed for cause. In counties whose population does not exceed 50,000, his salary shall be three hundred dollars.

27. The board of directors shall provide a suitable dispensatory, with medicines necessary for the proper treatment of the inmates of the institution; but no medicine, liquors or wines shall be dispensed or used, except under the direction of the attending physician, and then only for the benefit of the inmates; he shall also recommend to the board of directors necessary sanitary rules and regulations, who shall adopt the same and cause them to be enforced.

28. At their first regular meeting, the board of directors shall divide the county into five districts, as nearly equal as possible, and assign one of their number to each district, who shall have the general oversight of such cases as shall have come under the care of the county.

29. The second, third, sixth, tenth and eleventh sections of the act to which this is a supplement, and all other acts or parts of acts relating to county homes for the destitute or county poor-houses, inconsistent with the provisions of this act, be and the same are hereby repealed: Provided, This act shall not be construed to repeal any act or part of act relating to any county in which a poorhouse or poor-farm is already established and controlled by a board of poor-house directors.

30. The poor-house directors of any county in this state, where a poor-house has been heretofore erected, and the same has been or may hereafter be destroyed by fire, are authorized and empowered, and it shall be lawful for the said poorhouse directors, to rebuild the buildings so destroyed by fire, or to erect suitable buildings proper to accommodate both the sane and insane poor when a public charge.

31. The county commissioners of the respective counties, when such buildings have been or may hereafter be destroyed by fire, shall have the power, and it shall be their duty, to assess, levy and collect, together with the other county rates and levies, and on the same subjects of taxation, on estimates furnished by the poorhouse directors, an amount sufficient to furnish the necessary funds to erect such buildings and furnish the same, in connection with any sum or sums of money received by said poor-house directors from insurance on said buildings so destroyed by fire, or from any other source.

32. Each of said directors, in addition to the amount now allowed by law, shall be entitled to such further reasonable sum as the court of quarter sessions shall deem just and proper for their special responsibility and expenses in rebuilding, not, however, to exceed the sum of two hundred dollars to each director for any one

year.

33. The plans and specifications for any building authorized by this act to be erected, shall be first submitted to and approved by the county commissioners of the county; and any contract for the erection of such building or buildings made proved by county by the directors of the poor with any contractor or contractors, or for furnishing the necessary materials for the same, shall have the approval of the county commissioners of the proper county, before such contract or contracts become binding and operative.

commissioners.

4 June 1879 § 1. P. L. 93.

34. Before proceeding to exercise the powers conferred on them by the act to which this is a supplement, each of said directors shall give a separate bond to the Directors to give county, in such sum as the court of quarter sessions of said county shall deem proper, with sufficient security, to be approved by said court, conditioned for the faithful performance of his duties.

bond.

10 April 1879 § 6. P. L. 19.

On completion of buildings, viewers to be appointed.

Report.

Compensation of viewers.

35. Whenever the said buildings shall be finished and completed, the said directors shall notify the said court, who shall thereupon appoint three competent and disinterested persons viewers to view and thoroughly examine said buildings, and report to the court whether said contract or contracts have been faithfully and fully performed and completed; and until such report be so made, final payment on said contract or contracts shall not be made and paid. The said viewers shall be entitled to three dollars per day for each day necessarily engaged in the performance of their duties.

(m) Quere? does this refer to the question of residence, or to the term of office?

AMENDMENT.

See CRIMINAL PROCEDURE; EQUITY; JUSTICES OF THE PEACE; MANDAMUS.

1. Pleadings may be amended, before or on the trial.

2. Mistake in the name of a party may be amended.

3. Power to amend names of parties extended.

4. Names of parties may be stricken out.

5. Municipal claims may be amended.

6. Form of action may be changed.

7. Certain defects of form may be amended after verdict.

1. In all cases where any suit (n) has been brought in any court of record within 21 March 1806 § 6. this commonwealth, the same shall not be set aside for informality, (o) if it appear

4 Sm. 329.

that the process has issued in the name of the commonwealth, against the defend- Pleadings may be ant, for moneys owing or due, or for damages by trespass or otherwise, as the case amended, before or may be; that said process was served on the defendant, by the proper officer and in on the trial. due time;(p) nor any plaintiff nonsuited for informality in any statement or declaration filed, or by reason of any informality in entering a plea; but when, in the opinion of the court, such informality (q) will affect the merits of the cause in controversy, the plaintiff shall (r) be permitted to amend his declaration or statement,(s) and the defendant may alter his plea(t) or defence, (u) on or before the trial of the cause; (v) and if, by such alterations or amendment, the adverse party is taken by surprise, (w) the trial shall be postponed until the next court. (x)

(n) This extends to actions of partition. Dewar V. Spence, 2 Wh. 211. And to penal actions. Jones v. Ross, 2 Dall. 143. Griffith v. Eshelman, 4 W. 55. Megargell v. Hazleton Coal Co., 8 W. & S. 342. Beates v. Retallick, 23 P. S. 290. Emanuel v. Maulsby, 2 T. & H. Pr. § 2190.

(0) This provision only extends to jury trials. Burk v. Huber, 2 W. 313.

(p) The omission of the sheriff to sign his return to the original writ is cured by this provision. Dewar V. Spence, 2 Wh. 211.

(9) The act is confined to matters of form. Delaware and Schuylkill Canal Co. v. Parker, 4 Y. 363. Beale v. Commonwealth, 16 S. & R. 153. Burk v. Huber, 2 W. 313. Griffith v. Eshelman, 4 W. 55. Tryon v. Miller, 1 Wh. 17. And embraces only substantial amendments. Wilson v. Hamilton, 4 S. & R. 240. Clymer v. Thomas, 7 Ibid. 180. Glazer v. Lowrie, 8 Ibid. 498. Newlin v. Palmer, 11 Ibid. 101. Franklin v. Mackey, 16 Ibid. 118. Diehl v. McGlue, 2 R. 339. Coze v. Tilghman, 1 Wh. 282. Griffith v. Eshelman, 4 W. 55. Sandback v. Quigley, 8 W. 461. It does not affect amendments at common law, or the statutes of jeofail. Dewar v. Spence, 2 Wh. 211. Myers v. Clark, 3 W. & S. 536. Smith v. Rutherford, 2 S. & R. 361. Morrison v. Moreland, 15 Ibid. 62. Caldwell v. Remington, 2 Wh. 136.

(r) The effect of this act has been, to make amendments, which before were discretionary, a matter of right, and the granting or refusing of them the subject of revision on a writ of error. Young v. Commonwealth, 6 Binn. 88. Clymer v. Thomas, 7 S. & R. 181. Newlin v. Palmer, 11 Ibid. 98. Hopkins v. Mehaffy, Ibid. 129. Buckwalter v. United States, Ibid. 197. Garvin v. Dawson, 13 Ibid. 248. Proper v. Luce, 3 P. & W. 65. Commonwealth v. Mechling, 2 W. 130. Griffith v. Eshelman, 4 Ibid. 55. Chamberlin v. Hite, 5 Ibid. 373. Sandback v. Quigley, 8 Ibid. 461. Buck v. Bear, 3 Clark 355. Amendments on demurrer, or after judgment, are not within the act. Burk v. Huber, 2 W. 306, 310. Sandback v. Quigley, 8 Ibid. 461. Bailey v. Musgrave, 2 S. & R. 219. Wilson v. Hamilton, 4 Ibid. 240. Bank v. Israel, 6 Ibid. 294. Spackman v. Byers, Ibid. 385. Ordronaux v. Prady, Ibid. 510. Proper v. Luce, 3 P. & W. 65. Reed v. Collins, 5 S. & R. 351. Downing v. Lindsay, 2 P. S. 382. Stephens v. Myers, 12 Ibid. 302. It is only statutory amendments, which are demandable of right, that are the subject of revision in the supreme court. Tryon v. Miller, 1 Wh. 18. Proper v. Luce, 3 P. & W.66. (8) In the following cases, amendments were allowed: Clark v. Herring, 5 Binn. 35. Miles v. O'Hara, 1 S. & R. 32. Cunningham v. Day, 2 Ibid. 1. Smith v. Rutherford, Ibid. 358. Bank v. Israel, 6 Ibid. 295. Clymer v. Thomas, 7 Ibid. 178. Cassell v. Cooke, 8 Ibid. 268. Cavene v. McMichael, Ibid. 441. Shan

non v. Commonwealth, Ibid. 444. Maus v. Montgomery, 10 Ibid. 192. Beeson v. Commonwealth, 13 Ibid. 249. Rodrigue v. Curcier, 15 Ibid. 81. Franklin v. Mackey, 16 Ibid. 117. Beale v. Commonwealth, Ibid. 150. Coxe v. Tilghman, 1 Wh. 282. Caldwell v. Remington, 2 Ibid. 132. Yohe v. Robertson, Ibid. 155. Proper v. Luce, 3 P. & W. 65. Commonwealth v. Mechling, 2 W. 130. Rahouser v. Barth, 3 Ibid. 28. Miller v. Frazier, Ibid. 456. Tassey v. Church, 4 W. & S. 141. McAdam v. Orr, Ibid. 550. Kirkner v. Commonwealth, 6 Ibid. 557. Megargell v. Hazleton Coal Co., 8 Ibid. 342. Robinson v. Taylor, 4 P. S. 242. Schoneman v. Fegley, 7 Ibid. 433. Hellings v. Wright, 14 Ibid. 373. Morris v. McNamee, 17 Ibid. 173. Hardy v. Scanlin, 1 M. 87.

In the following cases, they were refused: Delaware and Schuylkill Canal Co. v. Parker, 4 Y. 363. Shoch v. McChesney, Ibid. 507. Grasser v. Eckart, 1 Binn. 575. Ebersoll v. Krug, 5 Ibid. 51. Bank v. Israel, 6 S. & R. 293. Newlin v. Palmer, 11 Ibid. 98. Dunn v. Commonwealth, 14 Ibid. 431. Diehl v. McGlue, 2 R. 337. Tryon v. Miller, 1 Wh. 11. Griffith v. Eshelman, 5 W. 55. Reitzell v. Franklin, 5 W. & S. 33. Winder v. Northampton Bank, 2 P. S. 446. Stewart v. Kelly, 16 Ibid. 160. Kocher v. Burrows, 1 Luz. L. Reg. 333.

(t) The amendment of a replication is not within the act; amendments beyond the plea are as at common law, and to be tested by a legal discretion. Diehl v. Adams County Mutual Ins. Co., 58 P. S. 444. See Tiernan v. Blackstone, 1 Phila. 27. Leech v. Child, 2 T. & H. Pr. § 2196. And a bill of particulars is not amendable, without leave of the court. Wager v. Chew, 15 P. S. 324.

(u) An avowry is amendable. Weidel v. Roseberry, 13 S. & R. 178. A plea of set-off, and notice, are amendable under the act. Sharp v. Sharp, 13 S. & R. 444. Yost v. Eby, 23 P. S. 327.

(v) The parties may amend after the jury is sworn. Young v. Commonwealth, 6 Binn. 88. Miles v. O'Hara, 1 S. & R. 32. Cunningham v. Day, 2 Ibid. 1. Garvin v. Dawson, 13 Ibid. 246. Sharp v. Sharp, Ibid. 444. Diehl v. McGlue, 2 R. 337. Griffith v. Eshelman, 4 W. 55. Stuart v. Blum, 28 P. S. 225. And after the defendant's counsel has closed to the jury. Yohe v. Robertson, 2 Wh. 155. Franklin Fire Ins. Co. v. Findlay, 6 Ibid. 483. A party may amend after an appeal from an award. Fairchild v. Dennison, 4 W. 258. And on a second trial, after a reversal of a former judgment. Lee v. Wright, 1 R. 149. amendment must not introduce a new cause of action. Ebersoll v. Krug, 5 Binn. 51. Cunningham v. Day, 2 S. & R. 1. Smith v. Rutherford, Ibid. 358. Bank v. Israel, 6 Ibid. 293. Cassell v. Cooke, 8 Ibid. 268. Newlin v. Palmer, 11 Ibid. 98. Diehl v. McGlue, 2 R. 337. Tryon v. Miller, 1 Wh. 11. Root v. O'Neil, 24

But an

16 April 1846 § 1. P. L. 353.

Mistake in the name of a party may be amended.

4 May 1852 § 2. P. L. 574.

Power to amend

2. In all actions pending, or hereafter to be brought, in the several courts of this commonwealth, said courts shall have power, in any stage of the proceedings, (y) to permit amendments of the record, when it shall appear to them, by any sufficient evidence,(z) that a mistake has been made in the christian name or surname of any party, plaintiff or defendant:(a) Provided, That if, by such alteration or amendment, the adverse party is taken by surprise, the trial shall be continued until the next court. (b)

3. All actions pending, or hereafter to be brought, in the several courts of this commonwealth, and in all cases of judgments entered by confession, the said courts shall have power, in any stage of the proceedings, to permit amendments, the names of par- by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party. (c)

ties extended.

12 April 1858 § 1. P. L. 243.

4. The second section of the act passed the 4th day of May 1852, relative to the courts of this commonwealth, shall be so construed as to authorize the said courts, Names of parties where by reason of there being too many persons included as plaintiffs or defendants, by mistake, (d) as will prevent the cause from being tried on the merits, to permit an amendment, by striking out from the suit such persons as plaintiffs or defendants.(e)

may be stricken

out.

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5. Municipal claims for taxes, liens, public assessments or charges, may be amended at any time before or at the trial, on notice given defendant under rule of court:(g) Provided, That if made on the trial, a continuance may be granted by the court, on the application of the defendant.

6. In all actions pending or hereafter to be brought in the several courts of this commonwealth, said courts shall have power, in any stage of the proceedings, to

P. S. 326. Howard v. McKowen, 2 Bro. 150. See Coxe v. Tilghman, 1 Wh. 282. A party may amend as often as is necessary, the statute not fixing any limit to the number of amendments. Franklin v. Mackey, 16 S. & R. 117.

(w) A party has no right to allege surprise in an alteration that is merely formal. Richards v. Nixon, 20 P. S. 19, 25; and see Folker v. Satterlee, 2 R. 213. But if it affect the merits of the case, he cannot be compelled to proceed with the trial. Pittsburgh and Steubenville Railroad Co. v. Clarke, 2 Pitts. 48. When an amendment is asked for with a view to some unfair advantage, such as throwing on the plaintiff the burden of proving a fact not previously in issue, or to get the conclusion of the argument, it ought to be refused. Leave to amend ought never to be granted, unless the motion be supported by affidavit, that it will affect the merits, and is not desired for any other reason. Hartman v. Keystone Ins. Co., 21 P. S. 475. A defendant cannot introduce a plea of set-off, after the plaintiff has closed his evidence. Glazer v. Lowrie, 8 S. & R. 498. Nor can a special demurrer for want of form, be filed during the trial. Weidel v. Roseberry, 13 S. & R. 178. A plea of former recovery may be added. Garvin v. Dawson, 13 S. & R. 246.

A judgment entered by mistake for an amount different from that specified in the bond and warrant of attorney, is amendable at common law; but without prejudice to the rights of third persons. Smith v. Hood, 25 P. S. 218. See Crutcher v. Commonwealth, 6 Wh. 340. Weller's Appeal, 41 L. I. 313.

(x) The granting or refusing a continuance is not the subject of a writ of error. Folker v. Satterlee, 2 R. 213. Farmers' and Mechanics' Ins. Co. v. Simmons, 30 P. S. 299. And an amendment duly allowed cannot be impeached collaterally. Hamilton v. Seitz, 25 P. S. 226.

(y) The name of a corporation defendant may be amended, after judgment on an award. Marsh v. Wilkesbarre, 1 Luz. L. Reg. 173. An amendment in the defendant's christian name may be allowed, after execution issued. Schwartz v. Mauer, 2 W. N C. 445. (z) The proof required is only to satisfy the conscience of the court, and may be ex parte or otherwise. Horbach v. Knox, 6 P. S. 377. Wood v. Philadelphia, 27 Ibid. 502. The mistake need not be proved by the attorney who made it. Ward v. Stevenson, 15 P. Š. 21. The act contains no restriction as to the time of making the amendment. Ibid. But an amendment cannot be made, it seems, before the appearance of the defendant. Hartshorn v. Mercer, 3 Clark 505. See Snyder v. Schaadt, 4 W. N. C. 336. McCann v. Hosie, 3 Law Times (N. S.) 103.

(a) Both the christian and surname of a party may be amended. Ward v. Stevenson, 15 P. S. 21. And the christian name of a defendant, which was left blank in the original process, may be inserted. Porter

v. Hildebrand, 14 P. S. 129. It is confined, however, to the case of a clear mistake, and will not be suffered to effect an entire change of the real parties to the suit. Horbach v. Knox, 6 P. S. 379. Where the misnomer of the defendant is made the subject of an affidavit of defence, the plaintiff may amend and take judgment for want of a sufficient affidavit. Gustine v. Cummins, 1 W. N. C. 105; s. P. Bold v. Harrison, Ibid. 154. Megargee v. Souder, 2 Ibid. 15. Lippincott v. Hopple, Ibid. 186. But a deposition taken on behalf of such party, before the amendment, cannot be read after it is made. Harbach v. Knox, 6 P. S. 377. The grant of the power to amend implies the duty to exercise it in a proper case. Wood v. Philadelphia, 27 P. S. 502.

(b) The refusal of such application is not a subject of error. Mafit's Administrator v. Rynd, 69 P. S. 380. (c) A mistake in the names of the parties may be corrected, under this act, whether it arises from a mistake of law or fact. Druckenmiller v. Young, 27 P. S. 97. Cochran v. Arnold, 58 Ibid. 399. Pennsylvania Railroad Co. v. Keller, 67 Ibid. 300. Leonard v. Parker, 72 Ibid. 236. Heslop v. Heslop, 82 Ibid. 537. Thus, the name of an equitable plaintiff may be substituted as the legal plaintiff, if the cause of action be not changed. Kaylor v. Schaffner, 24 P. S. 489. And if suit be brought in the name of an equitable claimant, describing himself as assignee of the legal party, it is proper to allow an amendment making the legal party the plaintiff, for the use of the equitable one. Downey v. Garrard, 24 P. S. 52. Kellogg v. Datisman, 2 Phila. 111. And see Richter v. Cummings, 60 P. S. 441. Reber v. Wright, 68 Ibid. 471. Jackson's Executors v. Lloyd, 44 Ibid. 82. Latshaw v. Hiltebeitel, 2 Penn. 257. Clement v. Commonwealth, 95 P. S. 107. Whenever such amendment is allowed after the jury is sworn, the most regular practice is, to re-swear the jury, according to the amended style of the parties. Maffit's Administrator v. Rynd, 69 P. S. 380.

(d) See Locke v. Dougherty, 43 P. S. 88. (e) The names of parties, whether plaintiffs or defendants, may be stricken out or added, whenever it is necessary to a trial on the merits. Wrangler v. Hummel, 37 P. S. 130. Hite v. Kier, 38 Ibid. 72. Fidler v. Hershey, 90 Ibid. 363. Patton v. Pittsburgh, Cincinnati and St. Louis Railroad Co., 96 Ibid. 169. Hiller v. Pollock, 30 Pitts. L. J. 9. After verdict against more than one charged on a joint contract, a nol. pros. may be entered as to one, and judgment against the others on the verdict. Ganzer v. Fricke, 57 P. S. 316. See Musser v. Gardner, 66 Ibid. 242. After striking out the names of some of the plaintiffs, the defendants may withdraw their plea in bar, and plead in abatement. Dech v. Haas, 2 Leg. Gaz. 24. And see Britton v. Schloss, 9 W. N. C. 510.

(g) See Philadelphia v. Sanger, 12 Phila. 245.

permit an amendment or change in the form of action, if the same shall be necessary for a proper decision of the cause upon its merits; the party applying to pay all costs up to the time of amendment, and the cause to be continued to the next court, if desired by the adverse party.(h)

10 May 1871 § 1. P. L. 265.

Form of action may be changed.

P. L. 25.

7. In all actions brought, or hereafter to be brought in the several courts of 14 March 1872 § 1. this commonwealth, no verdict shall be set aside by reason of the want of a declaration or plea, or from defectiveness or indefiniteness in the form of said verdict, Certain defects of but the court in which such verdict shall have been rendered shall have power, at form may be any time, to direct the filing of a declaration, the entering of a plea and the filing verdict. amended, after of all such description or amended description, if in an action of ejectment, as in the judgment of the court shall make the pleadings and record conform to what was tried before the jury and found by the verdict.(i)

AMICABLE ACTIONS.

See ACTIONS PERSONAL; JUSTICES OF THE PEACE.

(h) This act does not apply to appeals from justices' courts. Getz v. Bright, 32 Sm. 144. But in such case, the declaration may be amended, by changing it from assumpsit to debt, independently of the statute. Ibid. Under this act, an action of scire facias may be changed into one of debt. Commonwealth v. Weiss, 6 Luz. L. Reg. 3. But dower cannot be changed into debt. Tatham v. Ramey, 82 P. S. 130. The form of action may be changed, though the statute of limitations has run, at the time of the amendment, so that the cause of action remains the same. Smith v. Bellow, 77 P. S. 441. Otherwise, where it introduces a new and different cause of action, already barred by the statute. Tyrill v. Lamb, 96 P. S. 464. See Miller v. Bealer, 100 Ibid.

583. King v. Fox, 2 W. N. C. 196. The form of action may be changed, after the opening of a judgment, for want of a sufficient affidavit of defence. Herdic v. Woodward, 75 P. S. 479. Leave may be granted on the trial. Taylor v. Hanlon, 103 P. S. 504. Where the declaration is changed from trespass to case, since the passage of the practice act of 25 May 1887, such change does not require the payment of costs, and a continuance upon the granting of such an amendment is now in the discretion of the court. Armstrong v. Factoryville, 10 C. C. 274.

(i) See Jones v. Fryer, 3 W. N. C. 365; s. c. 34 L. I. 282. This act is constitutional. Parks v. Boynton, 98 P. S. 370.

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