
    Langer against Parish.
    In a suit brought into the Common plens by appeal from the decision of an aWerman or justice, if the declaration Iaj the assumption after the commencement of the suit before th«' magistrate, it is error. And the Court will not send the record back to be amended by the Common Pleas.
    In ERROR.
    ERROR to the Court,of Common Pleas of Philadelphia county.
    This case came into the Court of Common Pleas by appeal from' ¿judgment rendered by an alderman, in favour of Robert Parish, plaintiff below, against Joseph Langer. The summons was issued by the alderman on the 1st and was returnable the 6th May, 1820, and judgment was rendered on the 8th. The declaration in the Common Pleas stated the assumption to have been made by the defendant on the 17th May, 1820.
    
      Phillips, now assigned for error,
    that the cause of action was laid after the commencement of the suit and even after the appeal, and cited Miller v. Ralston, 1 Serg. Rawle, 309, as in point.
    
      Milnor; for the defendant in error,
    thereupon moved that the record might be sent back to the Court of Common Pleas to give them an opportunity to amend it.
   By the Court

This case cannot be distinguished from Miller v. Ralston, where the judgment was reversed, because the declaration in the Court of Common Pleas laid the promise of the defendant, at a time subsequent to the entering of the appeal. 1 Serg. Rawle, 309. The very same point was decided, in McLaughlin v. Parker, 3 Serg. & Rawle, 144. In Miller v. Ralston, the Court refused a venire de novo, because there had been no error in the trial of the cause ; and it has been refused in other similar cases. Sending back a record to be amended, is always matter of discretion. If there had been a mere clerical error, there would have been no difficulty in sending it back, or in considering it as amended, without sending it back. But we do not consider it as a clerical error. The judgment must therefore be reversed.

Judgment reversed.  