
    [Lancaster,
    June, 3, 1826.]
    SHANK against WARFEL, Administrator of LINGEFELTER.
    IN ERROR.
    A motion to dismiss an appeal from the judgment of a justice of the peace, on account of a defect in the recognizance of bail, must be made within a reasonable time ; and if it be delayed nearly two years, it.is to be presumed that the appellee waives all exceptions to the recognizance.
    On a writ of error to Lancaster county the case was thus:
    The defendant in error, Jacob Warfel, administrator of Daniel Lingefelter, brought a suit against Rudolph Shank, before John Good, Esq. a justice of the peace, who gave judgment in favour of the plaintiff for eighty-one dollars forty ceñís. The defendant entered an appeal to the Court of Common Pleas, to August term, 1S21, having previously entered into a recognizance before the magistrate, in the following terms:
    
      “ Rudolph Shank, the principal, brings Daniel Hess as bail, to be conditioned for the defendant’s appearance, in a sum of one hundred and sixty-two dollars and eighty cents, and the costs of suit, to be levied of their goods and chattels; if not complied with according to law.’’
    On the 10th of May, 1823, the court, on motion of the plaintiff’s counsel, granted a rule to show cause why the appeal should not be stricken off, and after argument, considering that the recognizance was not in the form prescribed by the act of assembly, and that the plaihtiff had done nothing to waive the irregularity, they made the rule absolute and dismissed the appeal. This was now assigned for error.
    
      Wright, for the plaintiff in error,
    observed, that, admitting the recognizance to be defective, the appellee had waived the irregularity by permitting the cause to rest nearly two years in the Common Pleas before he moved to strike off the appeal. He relied on the case of Cochran v. Parker, 6 Serg. & Rawle, 549, in which a delay for a much shorter time was held to be a waiver of a defect in a recognizance on an appeal from a justice.
    Buchanan, for the defendant in error,
    answered that the case of Cochran v. Parker, was distinguishable from this. There the recognizance was amended by the justice, and the appellee had acquiesced in the amendment. But here there was in fact ho recognizance. It was bad from the beginning, and had never been amended. The motjon to strike off the appeal, was made before any act was done, or expenses incurred.
   Per Curiam.

This action was brought by the defendant in error, against the plaintiff in error, before a justice of the peace, who gave judgment for the plaintiff. Rudolph Shank, (the defendant below,) appealed to the Court of Common Pleas, who dismissed the appeal, because the recognizance of bail was not in conformity to the act of assembly.

It appears that the appeal was'entered to August term, 1821. The motion for a rule to show cause why the appeal should not be dismissed, was not made by the counsel for the'plaintiff until the 10th of May, 1823, and on the ISth September, 1823, after argument, the appeal was dismissed.

We have examined the recognizance, and are of opinion that it is bad. The plaintiff cannot recover upon it, — because it is quité different from that which is prescribed by the act of assembly. But the plaintiff suffered the appeal to remain too long in the Court of Common Pleas, before he objected to the recognizance. It was nearly two years before he moved in the business. A motion to dismiss an appeal, on account of a defective recognizance, is somewhat in nature of a plea of abatement, and should be made in reasonable time, otherwise it is to be presumed that the appellee waives all exceptions to the recognizance. It is the opinion of the court, that the delay in this case was unreasonable, and therefore the appeal ought not to have been dismissed. The judgment is to be reversed, and the record remitted, with an order to the Court of Common Pleas to reinstate the appeal, and proceed in the cause.

Judgment reversed, &c,  