
    [Sunbury,
    June, 1827.]
    BROWN against HONNETER.
    IN ERROR.
    If the grounds of a motion to strike off an, appeal from the judgment of a justice do not appear to have been upon the record, when the court decided upon, it, the refusal to strike off the appeal cannot be assigned for error.
    On a writ of error to the Court of Common. Pleas of Lycoming county, it appeared that James Brown, the plaintiff in error, brought suit before a justice of the peace against George Honneter, and, on the 21st of July, 1824, obtained a judgment for eighty dollars forty-seven cents. The defendant appealed, and, from the record sent up .to this court, it appeared that the transcript of the justice merely stated that, on the 10th of August, the defendant entered bail and appealed from the judgment. The appeal was duly entered in court, and; on the 4tli of September, 1824, on motion of the plaintiff’s counsel, a rule was granted to show' cause, on the first day of the next terra, why the appeal should not be struck off. On that day the rule was discharged.. The cause was then tried before arbitrators, who found an award in favour of the plaintiff for ninety two dollars sixty cents. The defendant appealed from the award, and afterwards, upon a trial before the court and jury, obtained a verdict. The plaintiff then moved, in arrest of judgment, for the following reasons: — ■
    
      1. Because no appeal was made by the defendant, from the judgment of the justice within twenty days.
    2. Because it does not appear that any person entered special bail for an appeal from the judgment of the justice.
    - 3. Because it does not appear that special bail was entered in a sum, to cover the sum in controversy, all the costs, counsel fee, and daily pay which the defendant should be bound for, in case the judgment of the justice should be affirmed by the court, or the plaintiff recovered more than the amount of the judgment of the justice, or in any sum whatever.
    The court below refused to arrest the judgment, and the plaintiff took a writ of error. •
   The opinion of the court was delivered by

Huston, J.

If it appeared that the objections made on the motion to arrest the judgment, had been mad$ and decided on by the court when they refused to strike off the appeal, there would be such error, as that we must, however reluctantly, reverse the judgment. There is nothing on the minutes or record to show on which of the above grounds the application to strike off was made; and there is strong reason to believe it was not on the latter ground. The justice does not even pretend to send up the recognizance of bail; this is usually done; but, though not done, the court will grant a certiorari to the justice to send it up at’ any time. It would be a sfrange supposition, that the court below had determined that an appeal could'be sustained without having entered bail, or that the matter would have been decided without a certiorari to the justice. That this objection was not taken below, is apparent on the whole return. To reverse, on mere form, a verdict and judgment, requires more than surmise — more than a possibility that error existed. In every case, the party objecting has it in his power to put on the record the very point made to the court trying the cause, and their decision on that point; and, if we must reverse! it ought to be when we know the very matter decided, and that it was decided wrong. It will not do to reverse a verdict and judgment, and deprive the party of the effect thereof, for any other reason that an error specific and defined on the record. The motion to strike off an appeal is sometimes founded on something apparent on-the transcript of the justice as returned, and maybe on facts extrinsic. Before the court decide, diminution may be alleged, and the record made more complete — or some evidence given; as, where the party appealing is rich, and says, in presence of the other party, “ I will go for surety, and appeal”— his opponent replies, “You aré good enough yourself — I ask no other bail:” and the justice, on this, takes the recognizance of the man himself. Now I apprehend no court would after this, permit a party to object, and deprive his opponent of trial for a reason which he had expressly waved. If this matter is decided on- proof of facts, that should appear. The man who objects, ought to see that the matter, and the whole matter is put on the record; for after a full and fair trial, I repeat, we would not readily deprive a party of the benefit and effect of it, and send him back irretrievably bound to pay what we see he does not owe.

Judgment affirmed.  