Mechanics & Tradesmen's Insurance v. Spang , 5 Pa. 113 ( 1847 )

Per Curiam.

There is a matter in this record, which, for the credit of the profession, it is hoped, will not occur again. The personal representatives of a deceased defendant were brought by scire facias on the record, though it is a horn-book principle that the surviving parties to an action are alone competent to litigate it. How the same judgment could have been rendered, or the same execution awarded, against the surviving defendants and the executors of the dead one, it is not easy to conceive. The blunder, however, does not enter into the matter raised by the exceptions.

By force of a statute existing at the .trial, but since repealed, the plaintiff might have gone for the asportation laid in -his count, without proof of a breach of close. He chose, however, not to do so, but prayed leave to amend by filing a count on the statute de bonis asportatis simply, which was refused, and as we think, erroneously. The breach of close in this form of action is for the most part only nominal, though technically speaking it is the principal injury; the asportation, which is the substantial one, being laid only as matter of aggravation; for which reason it is that the existence and breach of a close must be proved. The amendment therefore would have introduced no substantive new cause of action; and it was therefore within the purview of the act of 1806. Though it was unnecessary, the plaintiff was nevertheless entitled to insist on it; for he had a right, preserving matter of substance, to lay his cause of action in as many forms as he pleased. The statute has since been repealed, and the amendment has consequently become indispensable.

Judgment reversed, and venire de novo awarded.