After the appeal was called by the Court of Common Pleas, and a witness or two had boon examined on the part of the appellee, the plaintiff below, he moved to dismiss the appeal, which had been pending several terms, because it was not stated on the justice’s transcript, that the defendant was present at the time the judgment was rendered. The defendant thereupon applied for a rule upon the justice then in the *court room, to certify whether the defendant was not present when the judgment was rendered. This rule ought to have been allowed. Bo inconvenience or delay would have occurred, though the trial had actually commenced. The plaintiff had his witnesses there and had not expected to take advantage of this defect. Thompson v. Sutton, 1 Halst. 220; Allen v. Joice, 3 Halst. 135. It was said that there is a rule of the Court of Common Pleas against allowing rules or amendments of this kind; but no such rule has been shewn to us. The order of the Common Pleas dismissing the appeal, must be set aside, and the proceedings remitted, that the court may proceed according to law.