
    
      W. B. Smith, survivor, vs. Daniel Affanassieffe.
    
    It is essential to a writ that it have the seal of the court and he signed by the clerk.
    Defendant’s attorney accepted service of a paper, issued by plaintiff’s attorneys, which purported to be a writ in assumpsit, but which neither had the seal of the court nor was signed by the clerk. The plaintiff having failed to prosecute the matter further, held, that there was no sufficient commencement of an action on which judgment of non pros, could be entered.
    
      In the City Court of Charleston, February Term, 1845.
    The report of the Recorder is as follows:
    
      “ This was a rule on the plaintiff to shew cause why judgment of non pros, should not be entered by the defendant. N
    “ A paper was produced, purporting to be an original writ returnable to July Term, 1844, of the City Court, issued in the case of the plaintiff against the defendant. The paper was in the hand-writing of Messrs. Yeadon &• Macbeth, as plaintiff’s attorneys, and Mr. Kunhardt, as attorney for the defendant, entered on the back of this paper an acknowledgment, or acceptance, of service, and appearance for the defendant. There was neither signature of the clerk nor seal of the court to this paper; but it was indorsed with the hand of plaintiff’s attorneys, as a writ in assumpsit. It had not yet been entered in the ■sheriff’s office..
    “ No declaration has been filed on this writ or paper, and as more than two terms of the court have elapsed since the return of the writ, Mr. Kunhardt urged his right to the motion for leave to enter judgment of non pros, in the case. This was resisted, on the grounds that there was no proof that such writ issued; the paper relied on being not under the hand of the clerk nor seal of the court.
    “ It appeared to me that the paper in question was assuredly issued out of the office of the plaintiff’s attorneys, and under their hand; that they tendered it for acceptance of service to the defendant’s attorney, as possessing the requisites of a writ; that the plaintiff, through his attorneys, had, consequently, recognized its validity, and was estopped from denial of the contrary. I granted the motion.”
    The plaintiff appealed, on the ground that a paper, neither lodged with the sheriff nor signed by the clerk, nor having the seal of the court, is not a legal commencement of a suit, nor writ, on which a judgment of non pros, can be founded.
    
      Yeadon, for the motion.
    Kunhardt, contra.
   Curia, per EvaNS, J.

It is essential to a writ that it have the seal of the court and be signed by the clerk. The paper in this case is deficient in these particulars, and the insufficiency of the writ has not been waived by any subsequent act of the defendant so as to make him a party in court. There has been no action commenced and prosecuted between these parties so as to entitle either of them to costs, and the motion to reverse the decision of the Recorder is, therefore, granted.

O’Neall and Frost, J.T. concurred.

Richardson, J. absent from indisposition at the hearing.  