Benjamin against Armstrong and others.
A writ of error lies on a judgment arrested.
The defendant cannot assign as error that the writ of ejectmentis not signed by the prothonotary if it is under seal. • 3
This defect is cured by appeai’ance and pleading to issue, and by the act of assembly prescribing a writ of ejectment.
In Error.
THIS was a writ of error to the Common Pleas of Ly. coming county, in an ejectment brought by the plaintiff against the defendants.
• A verdict was given for the plaintiff in the Court below, and 3 a motion was made by the defendants in arrest of j udgment, and for a new trial. A variety of reasons were assigned in arrest of .judgment, and for granting a new trial: but the only one the Court thought important was the point made at the trial, and reserved by the Court, viz. that this ejectment was commenced by writ, after the act of 21st March, 1806, and that the writ was not attested by the prothonotary. On this point an opinion was returned with the record, signed by the President of the Court, stating, that the “ Court was of opinion, “ that if this paper produced had been a writ merely defec- “ tive in form, such as might have been amended, either by “ the Court under the act of assembly, or amendable by the “prarcipe, that the defendants would have been too late to take “ advantage of it at the trial: but it was not the writ prescribt£ ed by the act of assembly, and could not be amended after “ return: that it was not such a writ as the sheriff could legal- ££ ly serve, or to which he could legally make a return: that “the action was not judicially before the Court in any form “ known to the law: and that it was not such a writ upon “ which the Court can enter a judgment: that the whole “.proceedings were a mis-trial and'must be revised.”
It appeared by the copy of the docket entries returned, that on the same day on which the verdict was given, a motion was made by the defendants to shew cause why the verdict should not be set aside, and a new trial granted: and a rule was entered to shew cause why judgment should not be arrested: and that afterwards, on argument, the verdict was set aside.
Hall, for the plaintiff in error,
contended, that the omission of the name óf the prothonotary was not matter of Substance *393rind might be amended, and that error in process is cured by appearance and pleading. He cited 1 Bac. Ab. 96. Amendment, D. I. Baines v. Forrest. 1 Com. Dig. 480. Amendment, W. 2 Bac. Ab. 221. Error, B. 5. Cro. Eliz. 83. Act 21st March, 1806, sect. 6. Beale v. Dougherty.
(b)
2 Dall. 215, 216. Addison’s Rep. 119. The opinion of the Court is in substance,' that judgment be arrested: and on such a judgment a writ of error lies. It was so determined in Stevenson v. Robinson in this Court, on a writ of error to Franklin county, and in The Commonwealth v. Taylor in the Supreme Court at Chambersburg. In that case the Court below had arrested the judgment. This Court reversed it, and sent the record back with an order to proceed to judgment.
Duncan, contra,
contended, 1. That no judgment or order in nature of a judgment has been given in this case. Nothing was done but setting aside the verdict. There was a motion to set aside the verdict, arid also to arrest the judgthent. The opinion delivered by the President, is not the opinion of the Court. The judgment entered afterwards was, that the verdict should be set aside. The paper sent up as the opinion of the Court, is no part of the record: it is not so certified. This Court cannot pronounce judgment on a verdict set aside by the Court of Common Pleas. It is not contended, that after appearance, plea, and issue, the defendant crin take advaritage of the omission to áign the writ by the prothonotary, nor that a writ of error will not lie on a judgment arrested. But this Court cannot pronounce judgment On a verdict set aside by the Court of Common Pleas.
The Court did not hear Mr. Watts, for the plaintiff in error, in reply: but their opinion was delivered by the Chief Justice.
Tilghman C. J.
It appears by the record, that the Court of Common Pleas arrested the judgment, because the writ of ejectment Was not signed by the prothonotary : although it issued under the seal of the Court. It has several times been decided by this Court, that a writ of error Will lie on a judgment arrested: because the order to arrest the judgment *394is in nature of a judgment. It makes an end of all proceedings. Then as to the writ not being signed, it is a circumstance of which the defendant cannot take advantage after appearance, and pleading to issue. There is no occasion to resort to the statute of jeofail. The very act of assembly which prescribes the form of the writ of ejectment, provides, in the 6th section, (4 Sm. L. 329.) “ that no suit shall be set “ aside for informality, if it appear, that the process issued “ in the name of the Commonwealth against the defendant, “ and that the process was served on the defendant by the “ proper officers in due time.” The omission in this case was but an informality. The writ derived authenticity from the seal of the Court. So that, both by the act of assembly and the conduct of the defendant in appearing and pleading, the defect in the writ is made good. The Court of Common Pleas, therefore, ought to have proceeded to judgment on the verdict; and in arresting the judgment there is error. We are of opinion, that the order for arresting the judgment should be reversed, and judgment entered in this Court for the plaintiff in error, on the verdict given in the Court of Common Pleas.
See M‘Cormick, jun. v. Meason, vol. i. p. 92.
Judgment for the plaintiff in error.