[Lancaster,
June, 3, 1826.]
SWEIGART against LOWMARTER, Administrator of REISINGER.
IN ERROR.
After a judgment quod computet, in account render, entered by confession, upon a declaration averring that the defendant was the plaintiff’s bailiff and receiver during a certain specified period, the plaintiff cannot amend his declaration by laying a different period.
Nor can the plaintiff, on the trial of the issues certified by the auditors, give- evidence of the receipt of money by the defendant, prior to the time laid in the declaration.
A printed advertisement is not admissible in evidence, where it appears from the testimony of a witness, that the original manuscript from which it was copied was given to him, and that he had left it with the printer of a newspaper, by whom it was published; that he had not inquired for it of the printer, and had made no particular search for it among his papers, but that he believed it to be lost.
.This suit was commenced in the Court of Common Pleas of York county, by the plaintiff in error, John Sweigart, against the defendant in error, Jacob Lowmarter, administrator of Henry Rei-singer,-deceased, according to the record returned on a writ of error to the court below, “by summons in debt by assumpsit, not exceeding two thousand five hundred dollars.” The plaintiff filed a declaration in account render which contained four counts.
The first count stated, that Sweigart and Reisinger owned a stud horse called Bold Lion, which was to be kept by Reisinger, and was under his care as bailiff, and that he was to render a reasonable account for the five years he kept him, to wit, from the 2d of September, 1809, to the 2d of September, 1814, to the said Sweigart, and that during that period he received for the services of the said horse, two thousand dollars.
The second count averred, that Reisinger sold the said horse for seven hundred dollars, and promised on the 1st of November, 1809, to render to the said Sweigart, a reasonable account.
The third count stated, that the plaintiff and defendant were owners of a stud horse narfied Fancy Conqueror, for the price of which Sweigart advanced one hundred and seventy-five dollars more than Reisinger, which horse was to be kept, and was kept by Reisinger, four years, to wit, from the 1st of September, 1810, until the 1st of September, 1814-, to cover mares, and the said Reisinger, was to receive the monies and to render a reasonable account to Sweigart, and that Reisinger received one thousand eight hundred dollars and did not account for it, though he promised to do so on the 1st of November, 1809.
Tbc fourth count set forth, that on 1st of September, 1809, Sweigart owned a stud horse called Northampton Ball, which he *201placed under the care of Reisinger, from that day to the 1st of September, 1813, to cover mares; the said Reisinger, to receive the money, and render a reasonable account to Sweigart, after deducting a reasonable allowance for his trouble, and the maintenance of the horse, of one-third the nett proceeds; that Reisinger received during the said time one thousand four hundred dollars, but did not account.
The defendant pleaded, fully accounted; to which the plaintiff replied, that neither Reisinger nor his administrator did account.
On the 30th of July, 1816, a judgment quod computet was entered by confession. Auditors were then appointed who certified certain issues; but what they were, could not be discovered from the record.
On the trial of these issues the plaintiff offered to prove, that the agreement between himself and the defendant’s intestate respecting the three stud horses, and the time they were respectively kept by the defendant, viz. three, four, and five years, preceded the 1st of November, 1809. The evidence was objected to by the defendant, rejected by the court, and an exception taken.
The plaintiff offered to prove, that Bold Lion was held and used by Henry Reisinger, as a stud, from' the 1st of March, 1805, to the 1st of March, 1810, for which hé wás bound to render a reasonable account. This evidence was likewise overruled and an exception taken to the opinion of the court.’
The plaintiff moved the court for leave-to alter the declaration, so as to make it read, from 1st of March, 1805, to the 2d September, 1809. This amendment being objected to, the court refused it and sealed another bill of exceptions.
The defendant, having proved, by a person who lived with Rei-singer in the years 1807, 1808, 1809 and 1810, that the horse Bold Lion, was of no value as á stud, and that he afterwards sold him to George Wolf; the plaintiff, after proving that Wolf\ in 181?, took the horse to Shepherdstown, Virginia, where, and at Sharpsburg, Maryland, about three miles distant, he stood for the season, and had a large number of mares, proved by Wolf, that he, Wolf, had received a written communication, with, respect to the horse, from Reisinger, from which a printed advertisement, which was produced, was copied; that he .did not know whether the original was with the printer, or whether it was among his papers at home, or what had become of it, he believed it was lost; that he looked in his book from which he got the advertisement and could not find it;, that he looked no where .else and did not inquire of the printer; that he lived in Martinsburg, and left some of his papers respecting the horse in Sharpsburg, with a man who collected mohey for him. The plaintiff then offered in evidence the advertisement by 'Wolf of Bold Lion, for the season, with the cetificate of Reisinger, and others in his favour. The evidence was objected to *202by the defendant’s counsel, and rejected by the court, to whose opinion an exception was again taken.
After argument by Gardiner and Hopkins, for the plaintiff in error, and Wadsworth for the defendant in error, the opinion of the court was delivered by
Gibson, J.
This record is a tissue of extravagant blunders, and many errors might have been assigned, that would be fatal to the judgment. The action was originally debt under the act of assembly on a promise to account for monies received as bailiff; and the declaration was filed in account render, without any agreement appearing of record to cure this monstrous incongruity. Judgment quod computet was rendered by confession, and auditors were as-: signed, by whom certain issues taken by the parties were so imperfectly certified, that it is difficult to say what they are. The plaintiff had averred in his declaration that the defendant was his bailiff and receiver during a period between particular days, which were specified; and at the trial of the issues, finding that his proof did not correspond with this, moved to amend by laying a period altogether different. Amendments at common law, being matter of discretion, are not the subject of error; but amendments under the act of assembly, being in certain cases matter of right, are inquirable of here. By the very words of the act, these are allowable only, “oh or before, the trial of the cause,” — never after it, But within the intent of the act, the trial of the cause in account render, is the trial of the issue on the plea to the declaration, and not the trial of issues that may happen to b,e certified by auditors. Here the plaintiff thought proper to render the time material by assigning a particular duration to the period during which the defendant was his receiver; consequently, when the defendant confessed judgment, he acknowledged that he was Hable to account for monies received during that period, and no other. How then could the court, without his assent, change the period for which he admitted himself to be accountable? To alter the declaration would have been to alter the judgment and to change the terms on which it had been confessed. Suppose instead of confessing judgment, the defendant had pleaded to issue, and it had been found against him, only the facts alleged in the declaration would have been found; and to have inserted a new averment, would have made the jury say more than they .meant. But it is impossible to raise n difference in this respect between a judgment rendered on a verdict and a judgment rendered on a confession of the party. In either case the amendment goes to substance and not to form, and is consequently not within the act of assembly. At this stage of the proceedings, matter of form may possibly be amendable-at the common law; but matter of substance certainly is not.
The plaintiff offered evidence of monies having been received, before the time laid in the declaration: and as the time was made material, this evidence was properly rejected. And besides, the *203parties had nota right to go into the whole of the account, the jury being sworn to try only the issues'that had been certified by the auditors. What these issues were does dot appear by the record; but the auditors themselves were precluded from meddling with any transactions but those comprised within the period specified, and consequently could certify no issue of fact which arose out of any thing else. *
The defendant having been improperly permitted to prove that one of these horses was entirely worthless for the purpose for which he was used, the plaintiff offered in evidence the copy of an advertisement in which excellent qualities were attributed to it; the original of which had been furnished to one Wolf, who after the period in question, had purchased the horsfe of Reisinger. The original paper had been given to Wolf in mahuscript, and had been left by him with the printer of a newspaper, in Martinsburg, Virginia, hy whom it had been published. Wolf testified that he had. not inquired of the printer, and had made no particular search for it even among.his own papers, but expressed an opinion that it was lost. It is' impossible to doubt the correctness of the opinion of the court, that evidence had not been given of due diligence to procure the original, or to account for the want of it. The probability that it had not been preserved by the printer, can furnish no reason why inquiry should not have been made of him; it might have proved successful, and that alone is reason enough why it ought not to have been omitted. But if tha sufficiency of preliminary evidence such as this, be a legitimate subject for the consideration of a-court of error, still the opinion of the court below, who are to judgé of the credibility of witnesses, (of which we can know little here) must necessarily be decisive in all but cases of palpable mistake in matter of law: of mistake in judging of the weight of evidence, we certainly cannot 'take cognizance, and should oftener than the court below fall into error,' weie we to attempt it. With respect to the point before .us, we are of opinion, that there was no error, either in fact or in law, and that the evidence was properly excluded.
Judgment affirmed.