
    Moore against Wait.
    Pittsburg, Monday, September 14th.
    If a justice gives judgment for a certain sum and interest, in the whole above his juridisction, and the defendant appeals to the Common Pleas, although he there pleads the general issue and goes to trial, judgment will be arrested. The proceedings upon an appeal are not de novo in the Conimon Pleas.
    In Error.
    If a justice gives judgment for a certain sum and interest, in the whole above his juridisction, and the defendant appeals to the Common Pleas, although he there pleads the general issue and goes to trial, judgment will be arrested. The proceedings WRIT of error to the Common Pleas of Washington county. Wait, the defendant in error, was sued before a justice of the peace, who gave judgment against him for 88 dolls. with interest from a certain day, making the whole amount 104 dolls. 26 cts. He appealed to the Common Pleas, and there pleaded the general issue to the plaintiff's declaration, but said nothing of the justice's want of jurisdiction. A verdict was found for the plaintiff for 112 dolls. 64 cts., and upon a motion in arrest ofjudgment, the court below was of opinion that as the transcript which accompanied the appeal was in place of a writ, and the foundation of all the proceedings in court, judgment could ~iot be rendered on the verdict, because the transcript shewed that the justice had no jurisdiction, and all subsequent procc edings were a nullity. The judgment was accordingly arrested, and the ilaintiff took his writ of error.
    
      
      Campbell for the plaintiff in error
    said that the justice had not exceeded his jurisdiction, because the liquidated sum was 88 dolls, and the judgment in fact for no more. But the ground on which he relied was, that as the defendant had pleaded to issue, he could not afterwards take advantage of the defect of jurisdiction in the justice; the time for pleading to the jurisdiction being before imparlance. In the case of a certiorari it was otherwise, but on appeal the proceedings were de novo in the Common Pleas.
    
      Addison contra
    said that the interest was as much a part of the judgment as the principal; and that as the transcript was the foundation of all the proceedings in the Common Pleas, if at any time the court discovered the justice’s want of jurisdiction, it was enough.
   Tilghman C. J.

The jurisdiction of the justice is founded on the act of Assembly; and having exceeded that jurisdiction, the judgment is erroneous. On the appeal every objection on the law or the merits was open to the appellant; and it appearing to the Common Pleas on the face of the record that the judgment of the justice was erroneous, it was their duty to arrest the judgment, although this matter was not pleaded.

Yeates J. and Smith J. concurred.

Brackenridge J.

concurred with great reluctance. Pie

said his mind was not perfectly satisfied that it was not the defendant’s duty to plead to the jurisdiction, either before the justice or in the Common Pleas.  