¶1This case cannot be distinguished from *135Miller 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.
¶2Judgment reversed.