
    Henry Crumley et al., Appellants, v. John Lutz et al.
    
      Practice, 8. G. — Quashing appeal — Exceptions—Evidence.
    An appeal by a plaintiff in ejectment from the refusal of the court below to arrest a judgment on a verdict in favor of defendant will be quashed where the record shows that no exception was filed to any action of the court below, although the reason suggested for arresting the judgment was because the court below called a jury, and in the absence of the plaintiff or Ms counsel, and without testimony being produced by plaintiff, took a verdict for defendant.
    Argued Jan. 10, 1896.
    Appeal, No. 469, Jan. T., 1895, from order of C. P. No. 4, Phila. Co., Dec. T., 1893, No. 802, refusing to arrest judgment.
    Before Stebbett, C. J., Gbeen, Williams, McCollum, Mitchell, Dean and Fell, JJ.
    Appeal quashed.
    
      Ejectment for a tract of land in the 26th ward of Philadelphia.
    From the record it appeared that on February 13,1895, a verdict was rendered for defendants.
    Plaintiffs moved an arrest of judgment, filing the following reasons:
    First. Because the jury was called, and a verdict for the defendants taken by the court, in the absence of the plaintiffs, their witnesses and counsel, and without testimony of any kind having been produced by the plaintiffs before the court and jury.
    Second. Because the learned judge who tried the cause erred in directing the impaneling of a jury and in accepting a verdict for defendants, in the absence of testimony of any kind being produced by plaintiffs, instead of directing a nonsuit.
    The court refused to arrest the judgment.
    No exceptions were taken to any action of the court below.
    
      Error assigned was order refusing to arrest judgment.
    
      John M. Arundel, for appellants.
    — At common law, before the jury deliver their verdict, the plaintiff is bound to appear in court by himself or counsel: 1 Troubat & Haly, 578; M’Credy v. Fey, 7 Watts, 496; Haviland v. Fidelity Ins. & Trust Co., 108 Pa. 236; Easton Bank v. Coryell, 9 W. & S. 153.
    
      Frederick J. Knaus and Horace Haverstich, for appellees.
    — The statute of Westminster 2d is still in force in Pennsylvania, notwithstanding the act of 1887, and an exception taken and sealed under that statute is still the only way of making the testimony part of the record: Com. v. Arrott, 161 Pa. 320; Rosenthal v. Ehrlicher, 154 Pa. 396; Connell v. O’Neil, 154 Pa. 582.
    January 10, 1896:
   Per Curiam,

Appeal quashed.  