The opinion of the Court was delivered by

In this summary mode of proceeding by way of petition, 'the manner of setting out the plaintiff’s cause of action is of but little importance, so that it is done with sufficient precission to be a bar to another action brought for the same cause. If therefore the plaintiff had stated about the amount which he supposed to be due, after having stated that the note, was lost, without attempting to give a copy of the note the evidence offered might have been received. But by the profeit of the note, he had undertaken to prove it as laid; and a recovery in this case would have been no bar- to an action on the true note. The testimony was therefore properly rejected. Leave to amend is so much a matter of discretion, that this court will seldom undertake to control the circuit judge in that respect. A non-suit had been ordered in this case, and the cause was actually out of court. To have suffered the ^party to amend, would have to allow him to substitute a new and distinct cause of action. This court is not disposed to interfere With the opinion of the court below. The motion is refused.