M'Laughlin v. Parker

3 Serg. & Rawle 144

Opinion

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. Shelhamer, 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.