Taylor v. Hanlon

Mr. Justice Paxsgn delivered the opinion of the court, [507] We are unable to say whether the court below erred m permitting the plaintiff below to change the form of action from trespass to trover. If it was a change of the form of action only, the amendmeut was allowable under the Act of 10th May 1S7Í P. L. 265. There is nothing upon the record 'to show what the cause of action was before the justice. The transcript is not given and no narr. was filed, the case having been tried under the rule which substitutes the transcript of the justice for a declaration. Picking up our knowledge of the case as best we can, from the paper book, we learn that it was tried in the common pleas as an action of trover and conversion. The plaintiff claimed that he placed his horse with the defendant to be cured of “ ringbones and spavins,” and to be returned within four days. The horse was not cured and was not returned within the time. The plaintiff called upon defendant afterwards for the horse, and was told that it was not in a condition to he moved. This was conceded by the defendant. lie said upon cross-examination : “I went there and looked at the horse, and got some parties to look at it too, and it made some of them sick to the stomach.” He further says that he refused to take the horse away and demanded pay for it. This will not sustain trover and conversion. There was no demand and refusal. The demand is nothing without the refusal. Some time after the suit was commenced before the justice, the plaintiff’s barn was destroyed by fire and the defendant’s horse was consumed with it. There was no evidence that the horse was unskillfully treated by the defendant, and if there had been the plaintiff could not recover for such canse in an action of trover. The 2d, 3d, 5th and 6th assignments of error are sustained. Judgment reversed.