
    *Moses Fitch Alden, plaintiff in error against Andrew Lee.
    S. C. 2 Dall. 205.
    Landlord may proceed by ejectment against bis tenant, to recover possession. Where proceedings between landlord and tenant are reversed for error, the court are not bound ex debito justitice, to award restitution.
    Writ of error to Ruzerne county. The record stated, that the parties had appeared personally in the Court of Common Pleas of that county, and desired to enter an amicable action, which was done accordingly.
    Ree, by his attorney thereupon declared, ore tenus, that he had demised a saw-mill and certain lands to Fitch Alden, for a certain term, paying rent; that the term was fully ended; that three months had elapsed since he had made demand of him to leave the premises, and that he was quietly and peaceably possessed thereof before he demised the same.
    The defendant below, Fitch Alden, by his attorney, denied each of these facts, ore tenus, on which they were at issue; and by their consent, a'jury being immediately called, came, who, being balloted for, tried, sworn and affirmed, found the defendant guilty, in manner and form as the plaintiff had declared; upon which the court gave judgment that the plaintiff should recover possession of the premises, and awarded a writ of possession, which was executed by the sheriff.
    Mr. Sergeant for the plaintiff in error, took three exceptions to the record: — 1st, The Court of Common Pleas had no jurisdiction in a cause between landlord and tenant, which by the act of 21st March 1772 (p. 436) belonged to two justices of the peace; nor does it appear by the record that the judges of the court were justices of the peace. 2d, The jurors in such a case should be freeholders by the words of the said act, and it appears here, the common jury returned by the sheriff, tried the cause. 3d, The proceedings are informal, not being according to the course of the common law.
    He cited Holt, 394. The admittance of the parties does not give jurisdiction to a court. 1 Vez. 471. Appearance or consent gives no jurisdiction, but the same may be -called in question at any time. 3 Burr. 1366. Where a statute directs a previous application to two justices, and the sessions take up the matter in the first instance per saltum, their order must be quashed.
    Mr. Ingersoll, for the defendant in error, insisted, that it appeared judicially to the court, that the justices of the Court of Common Pleas were justices of the peace, and as such might entertain the cause, as between landlord and tenant; that though * two justices had the power under r^-t «-¶ the words of the act, yet a greater number was no *- cause of exception, as omne majus continet in se minus, 3 Bulst. 48, 49, and the parties might wave a formal mode of proceeding by mutual consent. But were it otherwise, it could not be denied, but the landlord might proceed by way of ejectment against his tenant in the Court of Common Pleas, for the recovery of his possession, or in an amicable suit to try his right of possession, although he might also pursue the summary mode pointed out by the act of 1772. Pie admitted, that consent would not give jurisdiction, though it would take away error, where there was jurisdiction. Co. Lit. 126. a. So in the case of a venire facias issuing ex assensu partium. 5 Co. 36. b. Here the parties might agree to submit the right of possession in this mode, in the nature of an ejectment, to the Court of Common Pleas; that the proceedings should be ore tenus, as in days of yore; and that the common jury should pass on the matter in controversy, and that they would be bound by the decision.
   Per Curiam.

The landlord might certainly have proceeded by ejectment, in the Court of Common Pleas, if he had thought proper; but he should then have pursued the proper forms pointed out by the course of the common law. Here is no ejectment entered; and it is impossible to vindicate these proceedings, being altogether unprecedented. The judgment therefore must be reversed.

Mr. Sergeant then moved, that a writ of restitution might issue, and cited 2 Bac. Abr. 231. When proceedings are reversed on error, and there has been a term sold to a stranger under a fi. fa. the party shall be restored to the money for which his term was sold.

But the court said they would not in a case similar to the present, where the plaintiff in error wished to avoid his own act, grant such writ, unless they were constrained to do it by -law; which did not at present appear to them.

At the instance, however, of Mr. Sergeant, they continued his motion for a writ of restitution, under advisement.  