
    M‘Laughlin against PARKER.
    
      Monday, April 7.
    
    If on appeal from ajustice5 the cause of action be laid in the narr. on quent mhe commenceraitbeforethe justice, it is error
    In Error.
    ERROR to the Common Pleas of Philadelphia county.
    This was an action brought by Parker against McLaughlin, , r .. ri before a justice or the peace, m which judgment was given ^ just^ce in favour of the plaintiff, for 85 dollars and five cents, and costs, on the 13th October, 1813. The defendant appealed to the Court of Common Pleas. The plaintiff filed a declaration, in which he laid an assumption of the defendant on the 16th November, 1813. A verdict and judgment were obtained by the plaintiff, and it was now assigned for error, that the cause of action laid in the declaration, was subsequent to the time of commencing the suit before the justice.
    
      Delany, for the plaintiff in error.
    
      y. R. Ingersoll, contra'.
   Tilghman C. J.

It is painful to reverse judgments on points which may be foreign.to the merits; but when errors stare us in the face, a reversal is unavoidable. If this action was really commenced before the debt was due, justice would require that it should be dismissed, with costs to the defendant. Biit I am afraid the assumption has been laid wrong, through inadvertence. Should this be the case, I can only express my. regret for the accident. As there seems to have been some doubt among the attornies of the Common Pleas, it is proper they should understand it to be our opinion, that the appeal is no more than a continuation of' the action commenced before the justice; that the same cause of action, and no other, must be prosecuted, on the appeal, and that, in order to support the judgment in the Common Pleas, the declaration must state a cause of action which accrued prior to the commencement of the suit, before the justice. These principles were established, in the case of Owen v. Shelha mer, 3 Binn. 45. Moore v. Wait, 1 Binn. 219. and Gordon v. Kennedy, 2 Binn. 287. I am of opinion that the judgment should be reversed.

Gibson J. concurred.

Duncan J. concurred.

Judgment reversed.  