
    Cahill against Benn and others.
    
      Pittsburg, Monday, September 13.
    
    the plaintiff in the Motion for a new ftejudge^were equally divided. Atterwards motion for judgment two^udgra bring present. One to bienter^the ^ntl^ttereupon <■!'? clerk mentf!ffeMSthat j¿7gment, this Court presuming that the dissent¡ng judge intend-on foe record, ^ the regular course bftfo»thepro4onotary from entry!S & pl0pei
    attomies7n thef Court below, to abide by the opi7o™ai°gL7i'eman, UP™ the question tion of the premade to the jfpom^om they hud been taken of/J^asfenforced by lbe court ot
    1 f the prndpe fora summons in ejectment, parlicularly describes the land it is not necessary for the plaintiff to file another description of the land, according to the sixth section of the act of 21st March 1806.
    IN ERROR.
    THIS was an ejectment in the Common Pleas of Indiana county, in which the attorney of Benn and others, the plaintiffs, below, m his prcecipe tov the summons, particularly described the land in controversy; the defendant pleaded the statute plea of not guilty, and on this issue r, r. , . ,? . . , r . tile cause went to trial. A verdict being entered tor the plaintiffs, the defendant moved for á new trial; and the Court being equally divided, the motion ivas held under advisement. Afterwards the plaintiffs’counsel moved for judgment, and two judges being present, one ordered judgment as a matter of course, and the other objected to the entry. The prothonotary entered judgment; and on the same day, the 14th of June 1813, execution was issued, On the same day, likewise, a recognizance to prosecute a . ,. ■’ , . , , , writ oi error was entered into, and made known to the plaintiffs; and on the 15th of June about 10, Á. M. writ of error issued. At 12, at noon of the 15th, possession was delivered under the habere, and on the 16th about sunset, the writ of error was shewn to the Court of Common Pleas, and the sheriff. The attorneys subsequently agreed to abide by the opinion of Mr. Ross, upon the question whether restitution ought to be made; and his opinion was in favour of restitution.
    The points made in this Court by A. W. Foster for the plaintiff in error, were: 1. That there was no judgment jn the Court below. 2. That restitution should be ordered, as well on the ground of law, that the writ ox error was a supersedeas to the execution, as on the ground of the agreeinent below, and Mr. Ross,s opinion. 3.* That there was error in the 'omission of the plaintiffs to file a description the land, on or before the first dav of the term to which the writ was returnable, according to the sixth section of . rt -, the act OI 21st March 1806.
    
      Baldwin for the defendants in error.
   On the first point, the Chief Justice delivered the opiof the Court as follows:

Tilghman C. J.

At first view of this record there seems some difficulty in saying whether a judgment has been entered or not. There were but two judges in Court. One directed the entiyof the judgment, the other objected to it, but judgment was entered. In order to understand the meaning of this, it is necessary to consider the matter concerning which the Court differed. There had been a verdict for the plaintiffs, and a motion for a new trial, which was argued and held under advisement. It does not appear that any opinion was expressly given on this motion, but after-wards when the Court was moved for judgment, the judges were equally divided. There was no point on which they could differ, but on the motion for a new trial. It appears to. us therefore that when Judge Campbell dissented from the direction of his brother judge to enter the judgment, it is to be considered as no more than an expression of his opinion that the verdict ought to be set aside. The Court being equally divided on this point, judgment ought to have been entered. We cannot suppose that Judge Campbell meant to act with such impropriety as to arrest the regular course of law, by forbidding the prothonotary to make a proper entry. We rather think, that he wished his opinion against the verdict to be entered on the record, and to leave the rest to the law. Any other proceeding would have been highly improper, and we will not without necessity, suppose that Judge Campbell intended to do what was, wrong. Undoubtedly, a judgment is the act of, the Court, and the prothonotary is no more than their agent, in entering it. But under all the circumstances of this case, we understand that there was a verdict for the plaintiffs, and a difference between the judges concerning a new trial, and a judgment entered for the plaintiffs in consequence of the Court’s being equally divided. It is unfortunate that our records are not made up with more precision. But in the state, in which they are often presented to us, we consider it as our duty to construe them with the greatest liberality, and in such manner as will effectuate the true meaning without regard to form.

On the point of restitution, the Court were of opinion that the agreement of the attornies below should be en-" forced; but gave no opinion upon the question of law, from what time a writ of error is a supersedeas. Vid. Stat. 3 Fac. c. 8., 2 Bac. Abr. 477. Error H., Tidd's Prac. 1068, 1070, 2., Act of 11th Mar. 1809. Purd. 134.

On the last point the Chief Justice delivered the following opinion.

-Tilghman C. J. The error assigned in this case is, that the plaintiffs did not file a description of the land for which the suit is brought, agreeably to the provision of the act of the 21st of March 1806. It appears by the record, that the plaintiffs before the issuing of the writ, filed a prcecipe, in which was contained a sufficient description of the land, and that the defendant pleaded not guilty, on which issue was joined. It isa captious objection, because the defendant was fully apprized of the plaintiffs’ claim. The defendant’s counsel insist that the act of assembly has introduced a new proceeding in case of ejectment, which must be strictly complied with. Let us examine the act then. The object of the legislature was to simplify the action of ejectment, which before, though well understood by lawyers, was founded in fiction, and incomprehensible by any but professional men. In the first place a form of writ is prescribed, in which the land is. described; after which it is added as follows, “ the “ right of possession or title to which he the said plaintiff “ saith is in him, and not in the said defendant, all which “ the said plaintiff averreth he is prepared to prove &c.” It is directed in a subsequent part of the act, that ££ it shall be “ the duty of the plaintiff to file in the office of the protho- “ notary, on or before the first day of the term to which the “ writ is returnable, a description of the land, together with “ the number of acres which he blaims and declares that the “ title is in him, and the defendant shall enter his defence, “ (if any he hath) for the whole or any part thereof, before “ the next term, and thereupon issue shall be joined.” By a supplement passed 13th April 1807, it is enacted that the plea of the defendant shall be <£ not guilty,” Now in this case, the prcecipe of the plaintiffs filed before the issuing of the writ, did contain such a description as the law requires, what more then is wanted? Why says the defendánt it is not alleged in the prmcipe that the plaintiff claims the land and declares that the title is in him. And where was the occasi on when this was averred in the writ? At first reading of the sixth section I thought that although unnecessary, the law did require it; but upon considering it critically I find that it is not so. He is to file a description of the land -which he claims and declares that the title is in him; but he is not to say in that paper, that he does so claim and declare &c, because that is done in the writ; in other words he is to file a description of the land which in the writ he claims and declares the title to be in him. This is the construction of the plaintiff’s counsel, and I agree with him. The words will well bear it, and it is not pretended that there is thé least use in making the averment again, which is made in the writ. I am therefore of opinion that the judgment should he affirmed.

Ye ates J. absent in consequence of sickness.

Brackenridge J. of the same opinion, with the Chief Justice.

Judgment affirmed.  