1817. I am of opinion, that the decree of the Orphans' Court should be reversed, and the sale made by John Bickle, jun., administrator the appellant, confirmed. BICKLE of B.CKLE ບ. YOUNG and wife appellees. GIBSON J. Concurred. DUNCAN J. gave no opinion, having been counsel in the cause. 3sr236 1134 413 3sr 23 f10SC 291 413C 60 Lancaster. Saturday, Where there is a view and re- Court of Quar In the case of a Road leading from the corner of Abraham Buckwalter's orchard, &c. IN ERROR. CERTIORARI to the Court of Quarter Sessions of Lancaster county. There was a view and review. The Court of Quarter Sessions set aside the review, and confirmed the report of the viewers. Montgomery, against the road, contended, that the Court of Quarter Sessions could not act in this way, without special reasons, which must appear on the record. Buchanan, contra. PER CURIAM. The Court of Quarter Sessions may adopt the report either of the viewers or reviewers. The view and review only being to inform their conscience. Proceedings confirmed. DOEBLER against The Commonwealth. IN ERROR. ERROR to the Quarter Sessions of Lebanon county. Elder, for the plaintiff in error. Godwin, contra. TILGHMAN C. J. Two errors are assigned in this case; one, that the defendant was tried by only eleven jurors—the other, that after the jury were sworn, the Court discharged one of the jurors, and put another in his place, without the consent of the defendant. The first being decisive, it is unnecessary to consider the second. It is stated in the record, that a jury being called, came, &c. The names of the jurors are then given, which are eleven only in number, although they are said to be twelve sober, judicious, honest, and lawful men. It is afterwards mentioned, "that George Fisher, one "of the jury, (whose name is not among the eleven,) appear"ing insensible from intoxication, the Court directed him to "be withdrawn, and another called in his stead, the counsel "for the Commonwealth agreeing thereto, and the counsel "for the defendant declaring, that he neither assented nor "objected to it." Supposing now, that the juror called in the stead of Fisher, with the others whose names are mentioned, made twelve, yet it no where appears what his name was, nor that he was sworn. Thinking that there had been some clerical omission in the record, we sent a certiorari to the Court of Quarter Sessions of Lebanon county to certify the part which had been omitted, but it does not appear, that any thing more is to be found than the record first sent up. Inasmuch then, as from that record it does not appear, that the defendant was tried by twelve jurors, lawfully sworn, &c. I am of opinion, that the judgment should be reversed. GIBSON J. Concurred. DUNCAN J. Concurred. 1817. Lancaster. Saturday, It is error if it does not appear, by the record of a trial of an indictment, that the defendant was tried by twelve jurors lawfully sworn. 3 SR 237 22 SC 235 Judgment reversed. 1817. Lancaster. Saturday, Where the ment of the costs, omitting the debt, but the plaintiff afterwards filed a decla ZEIGLER against FOWLER. IN ERROR. THIS was a writ of error to the Common Pleas of recognisance Lancaster county. An action was brought by Fowler against given on appeal by defen- Zeigler, and a rule of reference entered under the "act redant, from an award of arbi-"gulating arbitrations." The arbitrators made an award in trators, was favour of the plaintiff. The defendant paid the costs, and only conditioned for the pay- entered an appeal within twenty days, according to the provisions of the act of assembly. He also entered into a recognisance of bail, with sureties, but in taking the recognisance, the prothonotary made a mistake, the condition being only ration, the de- for the payment of additional costs, (omitting the debt) in fendant plead-case the plaintiff should recover. The appeal having been ed, issue was joined, and the entered, the plaintiff filed his declaration, May, 19th, 1813, ed to the defendant pleaded, and issue was joined, and thus the list for several cause remained until the 28th August, 1816, when the Court of Common Pleas dismissed the appeal, because bail had not been entered according to the 14th section of the act of assembly. A motion was made in the Court below, by the plaintiff, for permission to amend the recognisance from the short minutes entered by the prothonotary on the record, or to enter bail de novo; but was overruled by the Court. on the trial years, it was held that the ved by the plaintiff. Hopkins, for the plaintiff in error, contended, that the error was a mere omission of the prothonotary, of which the Court below ought to have allowed an amendment. Mere clerical errors may be amended at any time before judgment. 1 Bac. Ab. 146. 3 Black. Com. 406. 1 Binn. 366. The rule, that there must be something to amend by, is not applicable to amendments before judgment. Hard. 88. But here, after the appeal the plaintiff filed a declaration, put the cause at issue, and continued it on the trial list, from the 19th May, 1813, to 28th August, 1816. This was a waver of the recognisance. 1 Browne's Rep. 95. Buchanan, contra. The recognisance is not conformable to the act of assem bly; in which case the entry of the award has the effect of a judgment, and the prothonotary is to issue execution at the request of the party. The security given in this case, is for costs only; the substantial thing, the debt, is omitted. An amendment is not allowable, because it would make the bail answerable for what he never undertook. Besides, there is nothing to amend by. The filing a declaration and other proceedings, cannot give the court jurisdiction. It is well settled, that consent cannot give jurisdiction. 1 Binn. 219. 2 Binn. 746. And here the effect is precisely the same as if no appeal had ever been entered. TILGHMAN C. J. (After stating the case.) It has been contended, on the part of the plaintiff, that the appeal was properly dismissed, because it is provided, in the 11th sect. of the act, that if the bail be not regularly entered, within twenty days after the entry of the award on the docket, it shall be the duty of the prothonotary, at the request of the party in whose favour the award was made, to issue execution, &c. There is no doubt, but that if the bail be not entered according to law, the plaintiff may take advantage of the defect, and the Court of Common Pleas, on motion, will dismiss the appeal. Whether, in this case, the mistake of the prothonotary might not, and ought not, to have been amended, I do not say; because there is better ground, on which the cause may be decided. The bail was intended for the benefit of the plaintiff; and therefore he may wave it, and he has waved it, by filing a declaration, joining issue, and keeping the cause so long under rule for trial. It cannot be thought that this act of assembly meant to insist on the entry of bail, when the parties were willing to dispense with it. The counsel for the plaintiff are wrong, therefore, in supposing, that the Court of Common Pleas had no jurisdiction, because bail was not entered-although they are right in saying, that where there is no jurisdiction the consent of the parties cannot give it. I do not recollect an express decision in this Court, that the filing of a declaration, &c. is a waver of bail, under this act of assembly, but I am certain that the principle has been recognised. The case cited from 1 Browne, 95, (Common Pleas of Philadelphia county,) bears strongly upon the point; and from the reason of the thing, independently of authority, I am satisfied that the law is so. 1817. ZEIGLER ข. FOWLER. 1817. ZEIGLER v. FOWLER. I am, therefore, of opinion, that the judgment should be reversed, and the record remanded to the Court of Common Pleas, with directions to sustain the appeal, and proceed to the trial of the cause. On a feign ed issue be tween credi- the validity of by an insol-' vent, witness to WOLF against CAROTHERS. IN ERROR. ERROR to the Common Pleas of Dauphin county. THIS was a feigned issue, directed by the Court of a bond, given Common Pleas of Dauphin county, in which John Carothers Vent, the obli- was plaintiff and Henry Wolf defendant; the object being to gor is a good try whether a bond, given by David Peiffer to his father, prove that it Jacob Peiffer, a short time before David became insolvent, was bona fide, was bona fide, and for a valuable consideration. The dispute was between the creditors of David Peiffer. It appeared that he had been discharged under the insolvent law of 26th March, 1814. and for a valuable consideration. Query, whether such obligor could, on cross examination, be compelled to On the trial of the issue, the defendant offered David Peifanswer ques- fer, and Mary, his wife, as witnesses in support of the bond. tions tending The plaintiff objected to them, and they were rejected by the was guilty of Court. The defendant tendered a bill of exceptions. shew fraud, in rela tion to the bond. The decla The plaintiffs afterwards offered in evidence the declara rations of such obligor made in the absence of the obligee, are not evidence to destroy the bond. |