
    Stoever against Gloninger.
    In Error.
    
      May.
    
    Where a cause was re-j}°uph¡n t™ Lebanon ruary, ms, tai^paiL*1*" °^Qac„3]®r counties into» tyPcaned°Le-" ?>anon county, it was held that the dethe jurisCourtofCom» ot county, the those fac°s, átiho rise a removal; error hí tiiat^ Court, either ‘to decide sum* marily in fat0 disregard abatement, tried on the merits, on a .plea in bar.
    , ,. ... Where a cause was removed under the provisions of the above mentioned act, in September 1815, and no declaration was filed until February, 1818, it was held, that a plea to the jurisdiction, entered immediately afterwards, was.intime; and that an appeal by the defendant from an award of arbitrators, appointed under a rule entered by the plaintiff, and the entry of a rule to take depositions by the defendant, were no waiver of objections to the jurisdiction of the Court.
    
      Query, Whether the parties were not bound to make their election as to the removal before the day appointed by the act, for the prothonotary to have his docket completed, and the records readv for delivery? J
    
    WRIT of error to Lebanon county.
    This suit was originally brought by George Gloninger, the defendant in error, against John Stoever, in the Common Pleas of Dauphin county to September Term, 1803, to cover damages for overflowing his meadow, by building a dam across a-creek which ran through it. While the cause waspending, viz., on the Í6th February, 1813,- an act of assembly was passed, by which, certain p.arts of Lancaster and Dauphin counties, were erected into a separate county, to be called Lebanon county. The dam and the meadow to which the injury was done, were, .prior to the passage of the act, " " , t 4 1 u situate in Lebanon township, Dauphin county,-and on the erection of the new county, fell within its limits. The section of the act referred to, declares, that all suits shall be pending and undetermined in the Common Pleas of Dauphin county, on the first of November following, where the defendant or defendants in such suits shall at that time be resident in Lebanon county, shall be transferred. to the Court of Common Pleas of Lebanon county, and shall be considered as pending in said Court, and be proceeded on in like manner as if the same had been originally commenced there. It further provides, that the sheriff of Dauphin , ,, . r _ , .i _ , county, shall, on or before the third Monday in November next, procure a docket, and copy therein, all docket respecting the suits to be transferred, and shall, on or before the 1st of December, have the said docket, together with the records, declarations, and other papers respecting said suits, ready to be delivered to the prothonotary of Lebanon countv. '
    
      On the 13th September, 1815, on motion of the plaintiff’s counsel, the Court ordered this cause to be transferred to Lebanon county, where, on the 11th of April, 1817, a compulsory rule of arbitration was entered by the plaintiff, in pursuanee of which, arbitrators were appointed by the plaintiff, in person, and by the agent of the defendant. When the arbitrators met, both parties appeared before them, and the cause was investigated, and decided on its merits, no objection being made by the defendant or his counsel to the jurisdiction of the arbitrators. On the 2d August, 1817, the arbitrators filed their award in favour of the plaintiff for g 455, from which the defendant appealed. After the entry of the appeal, the defendant entered a rule to take depositions, and on the 10th November, 1817, the deposition of John Stoever, junr., was filed, stating, that the defendant had, sometime in the month of April, 1812, removed into the county of Northumberland, since Union, where he had resided ever since, an<J that he had not since resided in the county of Lebanon. On the 13th November, 1817, a motion was made by his counsel, to have the record removed to Dauphin county, which after argument, was refused. On the 2d February, 1818, a declaration was filed, and on the same day, a plea in abatement was placed upon the record, stating, that the cause of action, if any had accrued, had accrued within the jurisdiction of the Court of Common Pleas of Dauphin county, and not within the jurisdiction of the Court of Common Pleas of Lebanon county. On the 3d November, 1818, a second plea in abatement was filed, containing- the substance of the former plea, and also of the deposition of John Stoever, junr. This plea was further amended by one, which was filed, November 4th, 1818, and stated that the cause of action, if there was any, accrued within the jurisdiction of the Court of Common Pleas of Dauphin county; that the defendant removed from the county of Dauphin, about the 1st April, 1812, before Lebanon was erected into a county, and has not since resided, either in the county of Dauphin, or of Lebanon, but in that part of the county of Northumberland, which has since been divided, and formed into the county of Union. To this plea, the plaintiff filed a replication, setting forth, that by the act of assembly of 16th February, 1813, the county of Lebanon was erected; that the dam, and the meadow, to which the injury was done, were situate, before the passing of that net, in the township of Lebanon, in the county of Dauphin, but ever since the passing of the act, were within the boundaries of the county of Lebanon ; that the suit was pending, and undetermined in the Common Pleas of Dauphin county on the 1st day of November, 1813, and that it was afterwards duly transferred to the Common Pleas of Lebanon county, by virtue of the provisions of the act of general assembly above mentioned ; that a rule of reference was taken out by the plaintiff, by virtue of which, arbitrators were chosen at the time and place appointed by the plaintiff, and the defendant’s agent; that the arbitrators met, and were conducted over the premises by the defendant, for the purpose of convincing them that the dam did not injure the meadow; that they subsequently investigated the merits of the controversy in the presence, as well of the plaintiff, as of the defendant and his counsel, neither of whom made any objection to the jurisdiction of the arbitrators ; that after hearing the parties in the fullest manner, the arbitrators made their award in favour of the plaintiff, from which the defendant appealed; that on the 13th of November, 181?, a motion was made by the counsel for the defendant, to remove the cause to the Court of Common Pleas olDauphin county, which, after argument,was refused ; and that the cause being at issue, on the 1st January, 1818, was continued by consent. This replication was filed, January, 6th 1819, and on the 8th of the same month, the defendant rejoined, admitting the institution of the suit in the county of Dauphin; the separation of Lebanon from Dauphin county, by the act of assembly above mentioned ; that the premises in question, fell within the boundaries of Lebanon county ; and that the suit was pending and undetermined in the Common Pleas of Dauphin county, on the 1st November, 1813 ; but denying that it was duly transferred to the county of Lebanon, and averring that it could not be so transferred, agreeably to the provisions of the fifth section of the act of assembly, aforesaid, because the defendant did not, on the 1st November, 1813, reside in the county Lebanon, but then, and for a long time before, resided in that part of the county of Northumberland, which was afterwards erected into Union county.
    On this rejoinder, the plaintiff took issue, and entered a rule for trial.
    
      The defendant’s counsel, then moved the Court to decide the question of jurisdiction without the intervention of a jury, and transmit the cause to Dauphin county, for trial. This was opposed by the counsel for the plaintiff, but the Court decided in favour of their own jurisdiction, and the cause proceeded to trial on the merits; when the jury found a verdict in' favour of the plaintiff, for Jg 500.
    The errors assigned in this Court, were :
    1. That the Court of Common Pleas of Lebanon county, had no jurisdiction of the cause.
    2. That they did not give judgment of respondeat ouster, after deciding that they had jurisdiction of the cause.
    3. The general errors.
    
      Wright and Fisher, for the plaintiff in error.
    The 5th section of the act of 16th February, 1813, directs all causes which shall be pending and undetermined in the Common Pleas of Dauphin county, in which the defendant shall reside within the limits of the new county of Lebanon, on the 1st November, 1813, to be transferred to the Court of Common Pleas of that county. It requires also, that the docket entries shall be copied into a new docket, and that all the declarations, records, and other papers respecting the causes to be transferred, shall be ready for delivery to the prothonotary of Lebanon county, on the 1st December, 1813. Tfye defendant in the present case, did not reside within the limits of the county of Lebanon, on the 1st November, 1813, and the order of the Court to transfer it, was not made, until the 13th September, 1815, more than a year and nine months after the period fixed by the law for the delivery of the records of all the causes to be transferred, to the prothonotary of Lebanon county. After that period, a cause could not be legally removed, and unless the acts of the defendant amount to a consent, by which he is bound, the Court below have undertaken to give judgment in a cause over which they had no jurisdiction. The matter rests wholly upon the question of consent, and on this subject little difficulty can exist. Nothing can be more clear, than that if the Court had not originally jurisdiction of the cause, they could not derive it from the consent of the party, and that if they discover the defect of jurisdiction in any stage of the proceeding, they will arrest its progress. It is not necessary it should be by plea, before general imparlance. Mannhardt v. Soderstrom.
      
      Capron v. Van Noorden.
      Parsons v. Barnard.
      
      Brenneman v. Greenwalt. The appearance, therefore, of the defendant, his defence before the arbitrators, his appeal from their decision, and all his other acts, if they ever did amount to a recognition of the jurisdiction of the Court, do not prevent him from shewing their want of jurisdiction. The rule of reference was taken out before the sitting of the Court in Lebanon; and all those proceedings, to which he was compelled to submit, lest the question of jurisdiction should be decided against him, were before the filing of the declaration, and consequently before he had an opportunity of contesting the jurisdiction by a plea. The order of the Court of Dauphin county, was without authority. The law confided the transfer of causes to the prothonotary, and the Court had nothing to do with it. At all events, it was not competent to them, to make an order which so nearly affected the interests of a party, without giving him notice, and the opportunity of a hearing. It was not a case of mere personal privilege, in which the defendant might elect to remain in the Court in which the suit was originally brought. If he resided in the county of Lebanon, on the 1st November, 1813, the law is explicit, that the cause shall be removed ; if he was not then resident there, that it shall not be removed. Could not the original suit be prosecuted in Dauphin county, and could the proceedings in Lebanon be pleaded in bar ? They certainly could not; and if so, the cause was not legally removed.
    
      Buchanan and Hopkins, contra.
    The Court did not decide the issue of fact. It was tried by a jury, and found for the defendant in error. But enough appeared, independently of the defendant’s residence, to shew that the Court below had jurisdiction. The subject matter of the controversy was local, and of that they had jurisdiction. Whether, therefore, the cause was to be tried in one Court, or the other, was a mere personal privilege, which the defendant might wave, and which, on this occasion, he did wave, by the most explicit acts. Whether the cause should be removed, was a question for the Common Pleas of Dauphin county to decide. They have decided it, and their decision is conclusive. The power to decide, belonged properly to the Court. The prothonotary was' merely a ministerial officer, who was directed to copy the causes to be transferred, but was to exercise no judicial authority on the subject. If the Court were wrong in their decision, it was one of those orders of the Court, and there are many of them, from which there is no appeal. Hard. 125. 129. Hoffman v. Livingston.
      
       If however, the matter was pleadable, the plea came too late. Dilatory pleas must be put in strictly in time, or legal proceedings would be endless. Where it is necessary to plead to the jurisdiction, it must be done before imparlance, or else, being a personal privilege, it will be considered as waved. In the present instance, the amended plea was not put in until nine months after the declaration was filed. Smith v. Elder.
      
       Wharton's Executors v. Loxvrey. 1 Chitty on Pleading, 427, 8. 30. 1 Bac. Ab. 27. As to the time of removing the cause, the act is merely directory, and the transfer might as well have been made after the 1st November, 1813, as at that time.
    
      
       1 Binn. 138.
    
    
      
      
         2 Crunch, 126.
    
    
      
       7 Johns. 144.
    
    
      
      
         1 Serg. & Rawle, 31.
    
    
      
      а) 1 Johns. Ch. Rep. 211.
    
    
      
       3 Johns, 105.
    
    
      
       2 Dall. 364.
    
   The opinion of the Court was delivered by

Gibson J.

This cause was removed to Lebanon county, pursuant to the act by which that county was erected ; after which, the defendant below, by a plea to the jurisdiction, contested the legality of the removal. A replication and rejoinder followed, and an issue was taken, but informally, on a matter of fact. While this issue was pending, the counsel for the defendant, considering the whole pleadings as immaterial, moved the Court to direct the cause to be sent back to Dauphin county, which was refused; but the Court, in the same summary manner, decided in favour of its own jurisdiction, and the cause being put at issue on a plea in bar, was tried on its merits by a jury. It plainly appears, that the issue resulting from the plea in abatement, was, though an issue of fact, either tried by the Court, or, not tried at all. Unless, therefore, such plea were a nullity, and liable to be treated as such, to proceed to trial on the merits, was error.' The plaintiff below, contends, the plea should not have been received, on two grounds: because the order of the Court of Dauphin county was conclusive, and precluded all enquiry into the right of jurisdiction ; and because if it were not, the plea came too late; in either of which cases, as the plaintiff was not bound to reply, it was immaterial what further proceedings on it took place, or how it was disposed of. As to the first: I cannot doubt that the order of removal by the Court of Dauphin county was not conclusive. Power to decide, was not given to that Court; but the fifth section of the act directed, in general terms, that all suits that should be pending in Dauphin county on the first day of November then next ensuing, in which the defendant should be then residing in Lebanon county, should be transferred, and be considered as pending in the Court of the latter; and the prothonotary of Dauphin county was directed to make out a docket^ containing those cases, which, with the records and documents appertaining to them, were to be transmitted within a specified period. This duty was ministerial. How could the Court of Dauphin, act judicially in the matter i It had no process, to call the parties before it, or to ascertain the defendant’s residence, which was the fact on which the right of removal depended. Could the defendant be concluded, without an opportunity of being heard ? The removal of a cause is a serious matter; and to a party who does not reside within the county to which the removal is made, the inconvenience may be extremely oppressive, and his chance of an impartial trial greatly lessened. Was he to encounter this without a hearing, and without a chance of contesting its legality ? Although the removal was, I apprehend, the mere act of the prothonotary, which might, in the first instance be properly done, on the suggestion of either party, I am willing to allow that it was prima facie evidence .of its own propriety, so that if neither party had objected, the cause might have been well tried by the Court to which it was sent: but if the removal were in fact illegal, it is clear, that Court could acquire no jurisdiction, without the concurrence of both parties. Then the defendant could obtain redress, by no other mode than pleading to the jurisdiction, the absence of those facts which, alone, could authorise the removal. But it is said, the plea was not in time. An ordinary plea in abatement, must be put in within four days after the declaration has been delivered; but it is obvious, the ordinary rules of pleading are not, in this respect, strictly applicable to a case like the present, where the cause may have been at issue, before it was transferred. All that the Court can do, in such a case, is to see, that the defendant avail himself of the first opportunity to plead this new matter arising since the last continuance. But here, the cause was not at issue, till long after it was transferred. It was ordered to be transferred at September Term, 1815 ; and at this time there was no declaration filed. In April, 1817, the plaintiff entered a rule of.reference, under the arbitration act, and on the second of August following, the arbitrators filed a report in his favour, from which the defendant appealed, on the I6thx>f the same month. Thus there was no act done by the defendant, except the entry of a'rule to take depositions, that coüld, in the remotest manner, recognise the jurisdiction from this time, till the 2d of February, 1818, -when the plaintiff filed his declaration ; and on that, the defendant instantly pleaded to the jurisdiction. Here, then, was no delay, that can conclude the defendant, who could dispute the jurisdiction only by a plea; and before the plaintiff declared, there was nothing to plead to. Taking for granted, that, as the Court had jurisdiction, in the abstract, over the subject matter, the defendant might, by his assent, wave all objections that were personal to himself, the question is, whether his acts, prior to the moment when he first had an opportunity to object, could have that effect. I think they could not: because, he was obliged to follow the cause before arbitrators, and to attend to it, when it came back into Court; for if he had not appealed from the award, he would have been forever concluded; and the rule to take depositions, may, for aught we' know, have been entered to secure the evidence of a dying witness, which otherwise would have been lost. But acts of confirmation, where they operate at all, are regularly matters for the discretion of the Court, to be urged against receiving the plea, and, where they are made out, will, by preventing a plea in the first instance, obviate the necessity of disclosing them in a replication. But it is clear, there were no acts of confirmation, under all the circumstances of the case. Then the plea being put in, in due time, and the supposed order of the Common Pleas of Dauphin county not being conclusive, it results, that the answers given by the defendant in error, are unavailing. To this may be added, that, as by the provisions of the section under which the question arises, the prothonotary is to have his docket completed, and the records ready for delivery, at a particular day, it may well be doubted, whether the parties are not bound to make their election as to the exercise of the right of removal before that day j or whether, after, perhaps, repeated preparations for trial, and even after the cause was ordered on, it could be stopped by an application to have it transferred. But this is a question, not necessarily involved, and upon which we give no direct opinion. The judgment is reversed, and a venire facias de novo awarded.

J udgment reversed, and a venire facias de novo awarded.  