
    [Lancaster,
    May 16, 1825.]
    STOY, Administratrix of STOY, against YOST.
    
      m ERROR.
    Where, in a suit before a justice, there is an award of arbitrators that the plaintiff has no cause of action, no appeal lies, if it do not appear in the justice’s docket that the plaintiff's demand exceeded twenty dollars.
    Want of jurisdiction is not cured by acquiescence.
    The writ of error, in this ease, was to the Mayor’s Court of the city of Lancaster.
    
    
      John Yost, the plaintiff below, and defendant in error, it appears, took out a summons before a justice of the peace, against the plaintiff in error, Catherine Stoy, administratrix of Gustavus Stoy, deceased, “in a plea of damages not exceeding one hundred dollars, arising from a balance of book debt not exceeding one hundred dollars,” as appeared by the transcript from the justice’s docket in which this was stated. The parties agreed to refer the cause”, and on the 17th of October, 1820, the arbitrators awarded no cause of action, and the justice rendered judgment accordingly, and that the defendant pay the costs of suit. The plaintiff appealed to the Mayor’s Court of the city of Lancaster. On the 18th of Jiugust, 1821, the court, on motion of the defendant’s attorney, granted a rule to show cause why the appeal should not be dismissed, which was withdrawn on the 15th of January, 1822, and pleas entered and issues joined. In April, 1822, the defendant added the plea of set-off, and the cause being tried by jury, a verdict was given;, on which judgment was entered in fa-vour of the plaintiff for one hundred and eight dollars and twenty-three cents. The error now assigned was, that the Mayor’s Court had no jurisdiction, the appeal being irregularly entered.
    ■ Fuller and EUimalter, for the plaintiff in error,
    now contended, that the award being that the plaintiff had no cause of action, no appeal lay under the provision of the act of the 20th of March-, 1810, section 3, that “ the judgment of the justice on an award* When not exceeding twenty dollars, shall be final and conclusive on both plaintiff and defendant, without further appeal,” which governs the jurisdiction of the Mayor’s Court of the city of Lancaster. This point .was expressly decided in M‘Kim v. Bryson, 2 Serg. & Rawle, 463. There the suit was before a justice: the plaintiff’s demand was for damages under the sum of one hundred dollars, for not building a stone chimney in a workmanlike manner: the case was arbitrated* and an award was given in favour of the defendant, and judgment rendered therein. The plaintiff appealed to the Court of Common Pleas bf Butler county, who quashed the appeal, and their judgment was affirmed. The case o.f Stewart v. Keemle, 4 Serg. & Rawle, 72, does not conflict with this case, because there it appeared that the plaintiff Valued the hay for which the suit was brought at seventy-five dollars. The suit Wás in tro-ver for three tons and a half of hay, valued at seVenty-five dollars* and judgment was rendered for the defendant. The plaintiff appealed to the Court of Common Pleas, who dismissed the appeal* but this court reversed the judgment of dismissal.
    Port'er* for the defendant in error,
    insisted that either party itiay appeal, where the demand exceeds twenty dollars. Hoops v. Worthington-, 1 Brown’s Rep. 337: but that, if the appeal were irregularly entered in the first instance, the defendant, by moving to dismiss it, and then withdrawing his motion, pleading* and going to trial, had waived the irregularity, and the court would not now assist him. In Mayor V. Jacoby, 8 Serg. & Rawle, 526* there was a suit before a justice,’and judgment for the'defendant: the plaintiff entered his appeal after twenty days. This irregularity was cured by the defendant’s acquiescence in the Court of Common Pleas three years, and the plaintiff’s being put to expense in obtaining evidence, &el before the defendant moved to quash the appeal.
   The opinion of the court was delivered by

TilghmaN, C. J.

This action was Originally brought before a justice of the peace, by John Yost, the plaintiff in error. The cause of action stated by the plaintiff, as it appears on the docket of the justice, was “ a balance, of a booh debt, not exceeding one hundred dollars.” The cause was submitted to arbitrators, who awarded, that the plaintiff has no cause of action, and pay the costs of suit.” The plaintiff appealed to the Mayor’s Court of the city of Lancaster, in which the cause was tried; and he there eh-tained a verdict and judgment for one hundred and eight dollars, and twenty-three- cents damages, and costs of suit.

The error assigned is, that the Mayor’s Court had no jurisdiction, because it was a case in which no appeal lay. By the act of the 20th of March, 1810, section 3, the judgment of the justice, “ when not exceeding twenty dollars, shall be final and conclusive on both plaintiff and defendant, without further appeal.” It cannot be said, that the judgment in this case exceeded the sum of twenty dollars. Literally, it was for no sum — it was altogether in favour of the defendant. But to give the act the most liberal construction, according to what may be supposed to be its spirit, the most that can be said, is, that where the plaintiff’s cause of action set out on the docket of the justice, amounts to more than twenty dollars, then, if judgment be given for the defendant, it is in effect a judgment exceeding twenty dollars. But here, the justice’s docket only shows, that the cause of action w.as the balance of a book debt, not exceeding one hundred dollars. For aught that appears, it might have been less than twenty dollars, and this court cannot presume that it was more. The case of M'Kim v. Bryson, (2 Serg. & Rawle, 463,) is precisely the same as that now before us. It is impossible to point out any difference. But in Stewart, &c. Administrators of Nelson, v. Keemle, (4 Serg. & Rawle, 72,) where it appeared on the docket of the aider-man before whom the suit was brought, that the plaintiff’s cause pf action amounted to seventy-five dollars, and judgment was rendered for thp defendant, this court, adopting the liberal construction before mentioned, held that, the judgment was to be considered as substantially exceeding twenty dollars, and therefore an appeal Jay. The established construction, therefore, of the act of assembly, is, that to entitle the plaintiff to an appeal, where the judg? ment of the justice is for the defendant, it must appear on the docket of the justice,• that the plaintiff’s cause of actiofi exceeds twenty dollars.

But it was contended, by the counsel for the defendant in error,, that the plaintiff in error, having gone on to trial in the Mayor’s Court, has cured the want of jurisdiction in that court. If it had been a ease in which an appeal lay, the going on to trial would have cured any irregularity in the entering of the appeal. But,, where there is no appeal, the defect of jurisdiction is radical, and cannot be cured by the appearance of the party, and trial of the cause. Such an implied consent, cannot confer jurisdiction where the law has not given it. This was expressly decided in Morrison v. Weaver, (4 Serg. & Rawle, 190.) I am therefore of opinion, that the whole proceeding in the Mayor’s Court was erroneous, and th.e judgment should be reversed.

Judgment reversed.-  