#### Bright *versus*Getz *et al.*

1. On appeal from a justice of the peace the declaration was in assumpsit, the cause of action being a note under seal; the court properly allowed an amendment by filing a declaration in debt, and refused to order the plaintiff to pay the costs.

2. The power to amend the form of action in appeals from justices does not depend on the act of May 10th, 1871. (Amendments.)

8. *Forms*of action are not prescribed in the law giving jurisdiction to justices of the peace; it would be unwise to require adherence to th em.

4. When a case comes int.o court on appeal, the only requirement is, that the *cause*of action be the same.

5. That the plaintiff files a declaration in *assumpsit,*when it should he in debt, is not such an election as to forbid amendment, which may be allowed, but on terms, if necessary, to prevent injury to the defendant.

6. Adherence to form should not prevent an amendment from *assumpsit*to *debt,*when there has been a neglect to notice a seal to an instrument.

March 25th, 1874.

Before Asnew, C. J., Sharswood, Mercur, and G-ordon, JJ., Williams, J., at Nisi Prius.

*145Error to the Court of Common Pleas of *Schuylkill County.*To January Term, 1873, No. 177.

This action was originally brought by Iiiram S. Getz and Ephraim Dreibelbeis, assignees of Samuel F. Stoyer, against Joseph 0. Bright, before a justice of the peace, and was brought into the Court of Common Pleas by appeal.

The plaintiffs declared in assumpsit on a promissory note; the defendant pleaded *non*assumpsit, etc.

On the trial, June 26th, 1872, before Walker, A. L. J., the note on which'the cause of action was founded being offered in' evidence, appeared to be under seal. Defendant having objected to the form of action, the plaintiffs, by leave of the court, filed a declaration in debt. The defendant moved,— the plaintiffs having changed the form of action, — that they should pay the costs up to the time of amendment. The court granted a rule to show cause why the plaintiffs should not pay the costs. The trial proceeded, and resulted in a verdict for the plaintiffs. After argument of the rule, the court discharged the rule, delivering an opinion as follows:

“.....The law relied upon is the act of Assembly, approved 10th May, 1871 (Pamphlet Laws, 1871, 205), which is in these words: ‘ That 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 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.’

“ The question for us to determine is, does this act extend to actions *removed*into the Common Pleas by appeal from a justice, or did the legislature intend that its provisions should apply only to actions originally instituted in the Common Pleas ? ■ ■

“ The practice here has always been in appeals from justices of the peace for the plaintiff to declare in any form of action.

“ The defendant could not be surprised, for he knew of the claim before the justice, and this is strictly in accordance with the law on that subject.

“ The 4th section of the act of the 20th March; 1840 (Purdon’s Dig., pi. 72), provides, ‘ that upon an appeal from a justice, the cause shall be decided by the court on its facts and merits only, and no deficiency of form or substance in the record or proceedings returned, or any mistake in the form or name of the action shall prejudice either party in the court in which the appeal is made.’

“ On an appeal from a justice of the peace the {parties *146may voluntarily try, in the Common Pleas, an action of tort under pleadings applicable only to contract, for it is a waiver of all objections to the form of action.’ It dispenses with the application to amend: Steckel *v.*Weber, 8 Harris, 432.

“It is a settled rule that proceedings.on appeal from justices are *de novo*as to declaration, pleadings, and evidence; yet the cause of action must continue the same: Owen *v.*Shelhamer, 3 Binney, 45; Wright *v.*Guy, 10 S. & R., 229; Bechtel *v.*Cobaugh, 10 S. & R., 121.

“The *cause*of action cannot be *changed,*— the *form*may: Caldwell *v.*Thompson, ! Rawle, 370; Esher *v.*Elagler, 17 S. & R., 141.

“ The plaintiff", therefore, in an appeal from a justice, prior to the act of 1871, could amend his declaration and change his form of action, if he did not change his cause of action ; and, if it was necessary to the merits of the ease, without payment of the costs. And as this act does not repeal the act of 1810, either expressly or by implication, the latter is still in force.

“ This being the case, did the legislature intend to embrace within the purview of the act of 1871 any other actions than those originally instituted in Court of Common Pleas ?

“Previous to that act our statutes gave no power to the . court to allow a change in the form of actions. This often proved to be a hardship, for the plaintiff", for a slight mis- . take, had to suffer a nonsuit, pay all costs, and commence *de novo.*

“ The hardship consisted, not in payment of costs, but in commencing a new suit (which, however meritorious), might be bárred by the statute of limitations, and would certainly lose its priority of trial.

“This, we think, the act of 1871 was intended to remedy.

“We are, therefore, of the opinion that the act does not apply, to cases of appeal from justices of the peace, but only to those actions originally instituted in the Court of Common Pleas.”

The defendant took a writ of error, and assigned the discharging of the rule for error.

6?. *Chambers*and *L.*Bartholomew, for plaintiff in error.

Whilst plaintiff", on appeal from a justice, may declare in any form of action, yet having chosen his form in the Common Pleas, he-can sustain it only by evidence corresponding to that form: Owen *v.*Shelhamer, 2 Binney, 45; Wright *v.*Guy, 10 S. & R., 229; Walden *v.*Berry, 12 Wright, 456. The court could not permit in this case an amendment by the writ, because there was no writ: Hinckley *v.*Smith, 4 Watts, 433. *147There can be no question as to form of action before a justice: Kraft *v.*Gilchrist, 7 Casey, 470. The legislature allowed changes in the form of action, but it is to be on condition of paying costs.

W. *D.*Seltzer, for defendants in -error,

cited Steckel *v.*Weber, 8 Harris, 432; Bechtel *v.*Coolbaugh, 10 S. & R., 121; Caldwell *v.*Thompson, 1 Rawle, 310; Esher *v.*Flagler, 17 S. *&*R., 141; Holden *v.*Wiggins, 3 Penna. R., 469.

Chief Justice Agnew

delivered the opinion of the Court, March 1st, 1874:

The power to amend the form of action, on appeals from justices of the peace, does not depend on the act of 10th May, 1871 (P. L., 265). It has long been exercised, on the ground that forms of action are not prescribed in the law giving jurisdiction- to justices, and it would be unwise to require adherence to them. When a case comes into the court on appeal the only requirement is that the cause of action shall remain the same. The fact that a plaintiff files a declaration in *assumpsit,*when it should be in debt, is not such an absolute election as to forbid amendment. The amendment in such a case may be allowed; but on terms, if this be necessary, to prevent injury to the defendant.

It would be a harsh adherence to form if the neglect to notice a seal upon a writing should forbid a change from *assumpsit*to debt. The fact that the.legislature has authorized a change in the form of action in courts where formerly the election of the form was final, is another argument in favor of a liberal exercise of the power of amendment in those cases where the power existed before the act of 1871 was passed.

Judgment affirmed.