
    Stehley against Harp for the use of Hollenback and another.
    
      Thursday, May, 20.
    It seems, a statement is not proper, on an appeal from a magistrate.
    It is error it on appeal from a magistrate, the cause tried is different from that in which the appeal is entered.
    In ERROR.
    ERROR to theCourt of CommonPleas of Dauphin county.
    This was an appeal to the Court of Common Pleas, from judgment of a magistrate, in a suit brought before him, against George Stehley, by Edward Harp, for the use of Matthias Hollenback and Jacob Cist, trading under the firm of Hollenback & Cist. A statement was filed on the 25th March, 1817, for a demand on a single bill, drawn by the defendant in favour of Edward Harp, and assigned by him to Hollenback Ei? Cist, to which the defendant pleaded payment, and there being a replication of non solvit, issue was joined on the 13th June, 1817. On the 9th December, 1817, the plaintiffs filed a declaration for the same cause of action, -in the name of Hollenback Ei? Cist, as assignees of Edward Harp, and in March, 1818, there was a verdict, and judgment for the plaintiffs.
    Elder, for the plaintiff in error,
    contended, that a statement instead of a narr, is not authorised on appeal from a justice, Act of 21 st March, 1806. sect. 5. 4 Sm. Laws, 328, and that the declaration being in the name of Hollenback Ei? Cist, as assignees of Edward Harp, the verdict was in a different suit from that before, the justice, which was in the name of Edward Harp, as plaintiff.
    
      Ellmaker, for the defendant,
    admitted, that a statement was not proper in this case, as the Court below thought. But there was a declaration also filed, and the plea of payment, applied to the declaration, though it was filed after the issue was joined. '
   Per Curiam.

This judgment cannot be supported, because the cause tried was different from that in which the appeal was entered. The suit before the justice, was in the name of Edward Harp: the issue tried, was in the name of Hollenback Es? Cist.

Judgment reversed, and a venire facias de novo awarded.  