In re Weights and Measures.

erances and allowances specified by the Chief of the Bureau of Standards thereunder.

Plaintiff recovered judgment before a magistrate for injuries caused by a bull and a goat belonging to defendant. On a certiorari it was urged that the justice had no jurisdiction in that the action was one of case and not trespass.

Held: That the owners of horses and cattle are bound to confine them on their own lands, and if they escape and do any mischief on the land of another, the owner is liable in an action of trespass. Judgment affirmed.

Certiorari to Justice of the Peace. No. 104 October Term, 1915. C. P. Allegheny County.

A. H. Rosenberg, for plaintiff-in-error.

SHAFER, P. J., September 18, 1915.—The magistrate's record brought up upon this certiorari shows that the plaintiff claimed of the defendant damages caused by a bull and goat belonging to the defendant which broke into plaintiff's close and devoured his herbage. The plaintiff-in-error makes the somewhat surprising claim that the magistrate has no jurisdiction, because the action is one of case and not of trespass, and cites a case in which an entry by pigeons and another by a dog were held not to give rise to an action of trespass but of case, and other cases in which animals had done injuries on the highway. These cases have no bearing upon an entry of cattle in the land, and the law on that subject is not in doubt. In the case of Dolph vs. Ferris, 7 W. & S., 367, Mr. Justice Kennedy, whose opinions on any subject of pleading are entitled to great weight, says: "On account of the natural and notorious propensity of horses, cattle and sheep to rove, the owner is bound at all hazards to confine them on his own land, and if they escape and do any mischief on the land of another, which they are naturally inclined to commit, the owner is liable in an action of trespass, though he had no notice in fact of such propensity."

The judgment is, therefore, affirmed.

In re Work on Sunday.

Sunday Work-Penalty-Prosecutor.

A prosecutor for violation of the law prohibiting work on Sunday under the Act of April 22, 1794, as amended by the Acts of May 15, 1850, and April 26, 1855, is not entitled to one-half of the penalty imposed.

I have your inquiry of August 23, 1915, as to whether, under the Act of April 22, 1794, prohibiting the doing of business on Sunday, as amended by the Acts of May 15, 1850 and April 26, 1855, the prosecutor is entitled to one-half of the penalty imposed.

In an opinion given by the Honorable Hampton L. Carson, Attorney General, to your Department, on February 5, 1904, reported in 6 J. P. 140, it was determined in the affirmative.

It is with regret that I must disagree with the conclusion therein reached, and adopt rather the construction on this same Act as placed upon it by the same Attorney General in an opinion rendered August 1, 1905, and reported in 6 J. P. 97.

The Act of April 22, 1794, fixes the penalty at four dollars. By the 6th section of the same Act, one-half the penalty is payable to the prosecutor and one-half to the overseers of the poor of the county in which the prosecution is instituted.

The Act of May 15, 1850. P. L. 773, provides, in Section 6:

"That the penalty inflicted by the first section of the Act of Assembly entitled 'An Act for the prevention of vice and immorality, etc.,' shall hereafter be paid into the treasury of the Commonwealth of Pennsylvania for the use of the sinking fund."

While the above quoted portion mentions specifically Section 1, it does so only in determining the penalty as being that penalty which is provided by Section 1, and in so far as it changes the disposition or distribution of the penalty, would affect any other section of the Act in conflict with the express terms of the Act of 1850. The Act of 1850 does not indicate that that portion of the penalty theretofore payable to the overseers of the poor should be paid to the Commonwealth. It specifically provides that the penalty shall be so paid and the penalty includes not only the portion theretofore paid to the overseers of the poor, but also the portion paid to the prosecutor.

I would, moreover, call your attention to the fact that the Act of 1850 not only says where the penalty should be paid, but for what purpose; so. under that Act the penalty theretofore divided between the overseers and the prosecutor for their respective uses, is now payable to the Commonwealth "for the use of the sinking fund."

The Act of April 26, 1855, P. L. 321, merely changed the amount of the penalty from four dollars to twenty-five dollars.

In arriving at this conclusion, consideration has not only been given to the Acts of Assembly above enumerated, but also to the cases of Allegheny County vs. Commonwealth, 1 Monahan, 119, and Commonwealth of Pennsylvania vs. Allegheny County, 63 P. L. J., 119.

In re Work on Sunday.

It is, therefore, my opinion that the prosecutor is not entitled to onehalf the penalty imposed under the above mentioned Acts.

Very truly yours,

HORACE W. DAVIS,

Deputy Attorney General.

Englert vs. Carey Co.

Amendment-Averments- -New Cause of Action.

Plaintiff's original statement in trespass alleged negligence in putting on roofs of houses and claimed damages resulting therefrom. An amended statement averred that "plaintiff paid defendant the compensation agreed upon for said roof." Exceptions were filed to the allowance of this amendment.

Held: That as the original statement contained no averment as to contractual relations the amendment gave rise to a new cause of action and was improper.

Sur exceptions to allowance of amendment. No. 461 September Term, 1910. C. P. Allegheny County.

W. F. Stadtlander, for plaintiff.
S. R. McClure, for defendant.

SHAFER, P. J., May 4, 1915.—The plaintiff's original statement, which is in trespass, alleges that in the Fall of 1907 he built certain houses and that the defendant company put the roofs on the houses, and did so in so negligent a manner that the roofs afterwards leaked and damaged his houses, and caused a number of his tenants to move therefrom. In April, 1915, an amendment was allowed which sets up more particularly the damage to the houses by reason of the leaky roofs and the removal of tenants therefrom, and alleges that the reputation of his houses was ruined by reason of defendant's negligence. The amendment also contains the statement that "plaintiff paid the defendant the compensation agreed upon for said roof." To this amendment defendant has excepted, on the ground that it was made more than six years after the cause of action accrued. As the original statement contains no allegation of any contractual relation whatever between the parties, we are of opinion that the insertion of such a statement at this time is not proper, as it would change the cause of action, or at least would set up a cause of action which was not set up before. As to the other matters contained in the amendment, we are of opinion they were but expansions of the matters contained in the original statement and were therefore properly allowed.

It is ordered that the allegation as to payment by plaintiff of any compensation for the roofing be stricken out of the amendment allowed; otherwise the exceptions are dismissed.

Carpenter vs. Carpenter.

Amendment After Award of Arbitrators-Appeal-Cause of Action.

An amendment will be allowed in plaintiff's statement after an award by arbitrators and before trial on an appeal therefrom, when the amendment makes a change in the allegations as to the legal effect of a written instrument, but does not change the cause of action, except in the manner of its presentation. In such a case defendant need not file a new affidavit of defense.

Sur rule to show cause why an amended statement should not be filed; and why defendant should not be required to reply thereto. No. 12 Fourth Term, 1910. C. P. Allegheny County.

S. Patterson, Esq., for plaintiff.

J. C. Bane, for defendant.

SHAFER, P. J., May 4, 1915.—The proposed amendment consisted in striking out the name of the legal plaintiff and leaving the use plaintiff as the legal plaintiff, and in changing the allegations of the legal effect of a certain writing contained in the original statement, so as to make that which was originally called a guaranty, a contract of suretyship, the contract itself, however, being in writing and set forth in the original statement of claim. We do not understand it to be seriously controverted that such an amendment out to be allowed in an ordinary case. In the present case, however, after the original statement was filed, plaintiff took out a rule to arbitrate, and an award was made by the arbitrators in favor of the defendant, whereupon the plaintiff appealed and the action was in that way brought back into this Court.

It is urged by the defendant that the amendment in question, if allowed, will bring to trial a case substantially different from that which was before the arbitrators. We are of opinion that the proposed amendment does not change the cause of action, which was a contract of defendant in writing, set up in the original statement. A change in the allegations as to the legal effect of the instrument is not a change in the cause of action, but in the manner of its presentation. It is not essential to a good affidavit of claim that it should set out the legal interpretation of the instrument sued on. In addition to this there is a recognized distinction as to the allowance of amendments after the award of arbitrators between the case of appeal by the defendant and by the plaintiff, by reason of the different recognizances to be entered into by them on taking such appeal, Getty vs. Schearer, 20 Pa. St., 12. We are of opinion, therefore, that the amendment should be allowed. We do not, however, see any reason for calling upon the defendant to make a new affidavit of defense. The rule to allow the proposed amendment is, therefore, made absolute, and the rule to require plaintiff to reply thereto is discharged.

Lengwinas vs. Lithuanian Beneficial Society.

Appeal Common Pleas—County Court-Exception to Charge of CourtRe-Argument.

A petition for an appeal to the Common Pleas from a verdict in the County Court was refused. On motion for re-argument, it appeared that no exception had been taken to the charge in the County Court, and that no objection had been made to a particular portion of the charge assigned as error at the time it was delivered. Motion refused.

Appeal from Judgment of County Court. No. 1435 July Term, 1915. C. P. Allegheny County.

Frank I. Gosser, for defendant.

FORD, J., September 30, 1915.-This is a motion to re-argue an application for leave to appeal from a judgment entered on a verdict had in the County Court.

The action was by a member of the defendant, a beneficial society, to recover sick benefits. The defense was that the plaintiff was not entitled to benefits by reason of his having violated Section 9 of Article 5 of the by-laws of the society.

The by-laws were in the Lithuanian language, and the translations offered by plaintiff and defendant differed. In filing the opinion refusing an appeal, inadvertently the translation offered by defendant was quoted. At the trial in the County Court, a translation having been prepared and submitted, the Court said: "I will say to the jury that if this man's illness or injury was the result of drunkenness he cannot recover, nor if he was drunk during the period he was ill he cannot recover, and I will say that drunkenness means visibly under the influence of liquor. That is what I will tell them and you can so argue." To this instruction there was no objection.

The question was one of fact and submitted to the jury in a clear and comprehensive charge, to which no exception was taken. On the former hearing of the rule we were of opinion that the motion should be denied, and though we have again reviewed and carefully considered the testimony we are not satisfied that the application should be granted. The judges, who heard the argument in this case, join in the opinion that the motion should be refused.

ORDER.

Now, September 30, 1915, motion refused.