
    [Lancaster,
    June 3, 1829.]
    CALDWELL against THOMPSON, Executor of THOMPSON.
    IN .ERROR.
    On an appeal from a justice of the peace, though the form of the suit may b.e ' sometimes changed, yet the cause of action- must be the same as before the justice. ■ •
    Where it is alleged, that the transcript returned to the Common Pleas, does 'not conform to the justice’s docket, which-is alleged tobe erroneous,and an application is made for leave to amend the docket by the transcript, the court below are to.determine, upon inspection of the docket, and all the papers and evidence before' them, what are the true words of 'the record; and 'if they refuse the amendment, this court will not, for that reason, reverse the judgment.' ' ■ ' '
    Error to the Court of Common Pleas of Lancaster county.
    The plaintiff in error was plaintiff below. The cause came into the Court of Common Pleas on an appeal by the defendant from the judgment of a justice; and the declaration was for goods, chattels, and merchandise, sold and delivered. The allegations of error, material to be stated, were, 1st, That when the plaintiff offered, to .prove, by John Evans, “ That on the 8th of June, 1807, in pursuance of an order from James Caldwell, he delivered to Robert Thompson, the defendant’s testator, three hundred bushels of wheat that was stored in his store-house, the property of James Caldwell, the plaintiff, and that the price of wheat- was then, one dollar and four cents a bushel; and also, that the defendant admitted the plainr tiff’s account to be correct and right:” the court overruled the evidence which-had been objected -to, on the ground, that it presented a totally different'cause of action from the one.decided by the justice. A balance only of forty dollars and interest, were claimed to be due on the sale of the wheat. ■ .
    • 2d; The plaintiff then offered, in connexion with the proposed testimony of John■ Evans, the docket of the justice, now in the hands of his administrator, to show; that the return.of the justice upon the transcript, is not in conformity with the docket, and that stating the demand in the said transcript to be for a chair, is a mistake, as no sueh.de'mand is stated in .the docket. And, in connexion with that' evidence,- he also Offered' the affidavits of the plaintiff, and of Boughman, the administrator of the justice, to establish the mistaké, and then applied for permission to' amend the transcript of the justice by thfe. docket. All these matters were rejected by the court, and bills of exceptions taken thereupon. Among other things, it was alleged by the counsel for the defendant, that the docket entry itself, had been altered. The original transcript was as follows:— •
    
      
      “James Caldive.ll, Esq. v. Andrew
    
    
      T/iompson, Executor of James
    
    
      Thompson, deceased.
    Summons, on demánd not exceeding one hundred dollars; debt by book account for a chair, sixty-four dollars and fifty cents. The defendant appeared July 27th, 1816. The constable not having notified the plaintiff^ continued to July 27th. At 2 o’clock the said da}?, the plaintiff appeared. On hearing, judgment for the plaintiff for sixty-four dollars and fifty cents, by default, the defendant not appearing, with costs of suit; Judy 27th,'A; D. 1816; justice’s fees sixty-two and a half cents, constable’s seventy-five cents. ” ■ . .
    The justice added to the original transcript as follows:—“Mistake; defendant’s testator’s name is Robert instead1 of James, and is so stated on my docket,”
    
      Champneys, for the plaintiff in error,
    contended, that by the act of 1806, by the law, as it stood before, and all the numerous decisions in this court, the amendment was proper; that, to reject it was error; and that to reject the evidence of Evans was also error. If there was any ground to imagine the docket to have been fraudulently, touched, that was a fact in the cause to be decided like other facts by the jury. He ’ referred to Whart. Dig. Amendment, Letter E. Zeigler v. Fowler, 3 Serg. & Rawle, 238. Clarke v. M‘Anulty, 3 Serg. & Rawle, 364. Bechtol v. Cobaugh, 10 Serg. & Rawle, 121. Cochran v. Parker, 6 Serg. & Rawle, 549.
    
      Parke and Porter, contra,
    
    argued for the defendant, in error, that in a case of most apparent erasure, it was correct to withhold-from the jury a doubtful, if not fraudulent entry,- contrary to the record and transcript in the cause. It was also right not to. suffer a hopeless-demand for ¿riding vehicle, called a chair, to be given up, and in lieu of it, an old charge for wheat, to be substituted against the estate of the testator. They cited Moore v. Wait, 1 Binn. 219. Owen v. Shelmaher, 3 Binn. 45. M‘Laughlin v. Parker, 3 Serg. & Rawle, 144. Laird v. M‘Conachy, 3 Serg. & Rawle, 290. Stehley v. Harp, 5 Serg. & Rawle, 544. Cassell v. Cooke, 8 Serg. & Rawle, 268, 287. Farmers’ and Mechanics’ Bank v. Israel, 6 Serg. & Rawle, 293. Bailey v. Musgrave, 2 Serg. & Rawle, 219. Newlin v. Palmer, 11 Serg. & Rawle, 98.
   The opinion of the court was delivered by

Top, J.

One rule to be deduced from the'cases'unqu.estionably is, that on appeal, though the form of the suit may be sometimes changed, yet the substance of the plaintiff’s demand, the cause of action, must be in court identically the same as before the justice. From the decisions, another rule seems equally clear, that the mistakes, the slips of the pen of a, justice of the peace, may be, and ought to be corrected. But here, all mistake was denied.. It was insisted, there was nothing wrong, except in the docket offered; and, upon this head, divers matters were alleged on the one side and on the other. The court were to decide what were the true words of the record. It was not a question for the jury. And the court below haying settled it on inspection of' the docket and all the papers, arid affidavits, ought we to interfere, and upon disputed facts, rather than up.on any question of law,- to revérse the judgment? I think not. Much-must be left to the discretion of the court in which such applications are made. Taking all the evidence as it appears on the record, and the testimony offered from John Evans, and considering that the plaintiff’s claim, for the' wheat was of nine years’ standing when he brought his suit before the justice, after the death of the defendant’s testator, it is not á case in which,-in my opinion, the law calls upon- us to disturb any part of .the decision of the court below. .

Judgment affirmed.  