Tatham v. Ramey

Mr. Justice Sharswood delivered the opinion of the court, May 29th 1876. It certainly was not the meaning of the legislature, in passing the Act of May 10th 1871, Pamph. L. 265, permitting an amendment or change in the form of an action, to authorize an entirely new and different cause of action to be substituted. The words of the act, “ If the same shall be necessary for a proper decision of the cause upon its merits,” plainly evince this, and it is the principle which runs through all our acts for amendment and the decisions wMch have been had upon them. The courts have construed these acts with the greatest liberality, but never to the extent of allowing a different cause of action to be introduced. It would lead to very great injustice to defendants if this could be done, of which the case presented on this record is an illustration. The plaintiff below [134] sued out a writ of dower against the defendant. It was served on the tenants of the land, and the landlord or owner in fee simple, residing in a distant county, appeared by „his attorney. It was proper that he should do so, if he had any defence against the claim of the demandant. Dower is a real and local action, and cannot be brought except in the county where the land lies : Act of 13th June 1836, Pamph. L. 587. The demandant was allowed to change the form of action from dower to debt, which is a personal and transitory action, and to file an amended declaration grounded upon a contract of the defendant to pay the plaintiff a sum of money as interest. Yet the attorney for the defendant— who had never been served and was not within the jurisdiction of the court — was not allowed to withdraw the appearance which he had entered to the writ of dower. Thus, upon the same principle as that adopted and carried out by the learned judge below, a man, by commencing an action of ejectment, and by a service on the tenant securing the appearance of the landlord, may then change the form to assumpsit, and recover upon any contract relating to the same land; for it can hardly be pretended that he could introduce a cause of action not connected in some way with the same subject-matter. If one sues to recover the possession of land, that is a different cause of action from a claim for rent on a lease. The demandant had no right to maintain her action of dower, on her own showing, for the court had no jurisdiction.of it. As her husband had died seised and intestate, her remedy was in the Orphans’ Court; or if the defendant had become personally bound to pay her interest upon her thirds as valued by agreement, she must pursue him by personal action, in the proper forum, for the arrears. Judgment reversed.