
    Wallace and others against Elder.
    
      Tuesday, May, 23.
    The Orphan’s Court directed an issue in ejectment in which A. B, was to be plaintiff, and others, defendants, in which the question to be decided should,e’ plaintiff was the deed from plaintiff: an amicable action of ejectment was entered in the Court of Common Pleas, in which the defendants pleaded the general issue, and there was a verdict and judgment for the plaintiff but no declaration nor description of was filed. Held erroneous.
    In Error.
    ERROR to the Court of Common Pleas of Dauphin county.
    
      Samuel Elder,
    by virtue of a deed from John Maclay claimed a share of several tracts of land in Dauphin county, the estate of William Maclau, deceased, brother of John Maclay, and petitioned the Orphan’s Court of that county, to award an inquest to partition them. The Court accordingly awarded an inquest, and the sheriff returned an inquisition, making partition between the petitioner and the brothers and sisters of the deceased, who were his legal sentatives. On the return of this inquisition, the brothers and sisters of the deceased, opposed the partition; and the following order was made by the Court. “ The Orphan’s _ ° . . J .... r Court direct an issue m ejectment, m which Samuel Elder is to be plaintiff, and William Wallace, John Irwin, John Lyon, Esther Hall, and Samuel Awl, are to be defendants; in which, the question to be decided is, whether the plaintiff is entitled to recover under the conveyance of John MaclayE An action was thereupon entered between these parties, as follows. “ Amicable action in ejectment, in the Court of Common Pleas of Dauphin county. Defendants plead non cul. Issue and rule for trial — to be tried at the next Term, Confirmation of the proceedings in the Orphan’s Court to be suspended, until the decision of this question.” The r * 7 . . iendants, under a rule of Court, had several depositions taken, which related to the sanity and capacity of John Ma-clay the grantor. But no declaration was filed, nor any description of the land. The cause went to trial, and a verdict was found for the plaintiff, on which judgment was entered. The proceedings in the Orphan’s Court accompanied the record, and contained the petition of Samuel Elder, which particularly described the lands, of which partition tvas prayed.
    
      
      Fisher, for the plaintiffs in error,
    contended that the judgment in the Court of Common Pleas, was erroneous ; there being no declaration nor statement, nor any description of tjje jancj claimed by the plaintiffs filed, and therefore there was no issue. It cannot be considered as analogous to the proceeding in chancery, because there the issue is a feigned one, and the master, under the direction of the chancellor settles the issue, in case the parties differ as to the terms of it. 2 Madd. 365. 2 Harr. Ch. 124. Considered as an ejectment directed by the Orphan’s Court, it is indispensable that there be something on the record to describe the property demanded with sufficient certainty. 2 Bac. Ab. 419. 3 Wils. 23. 2 Str. 834. Cro. Eliz. 186. 1 Ld. Raym. 191. 1 Sid. 195. There is nothing in the record of the Court of Common Pleas, to shew what was to be decided: the deed of John Maclay is not described. In Brown v. Barnett,
      
       this Court, where there was: a plea of payment and no replication nor any mention of issue joined, reversed the judgment.
    
      Hopkins, contra.
    The agreement of the parties shews, that the point in issue was, whether the plaintiff was entitled to recover under John Maclay’s deed. With this understanding, the defendants pleaded the general issue, took depositions and went to trial. There was therefore no occasion for a statement or declaration : they were waved by the agreement of the defendants, and they cannot in the face of their own agreement deny, that an issue was directed by the Orphan’s Court. The proceedings in the Orphan’s Court, shew what the lands were, of which William Maclay died seised, and which were in controversy in the ejectment. No haberefacias possessionem issues on such a judgment; but it is returned to the Orphan’s Court, who proceed thereon as they think proper. No form is necessary for a feigned issue ; and if it were, the Statute 16 and 17, Car. 2. c. 8, provides, that after verdict, judgment shall not be stayed or reversed for want of form. So also the act of assembly of 21st March, 1806, sect. 6, declaring that suits shall not be set aside for informality, cures the defect. In Wenn v. Adams,
      
       it is decided, that when the plaintiff accepts a plea, it is an engagement, that the declaration shall be filed before trial, and a waver by the defendantof any advantage from the omission, and the plaintiff was non prossed for not going to the trial. So in Leftwitch v. Stoval, there was no narr filed, but the defendants pleaded non assumpsit, and the case was submitted to arbitrators, and an award and judgment had for the plaintiff: held that the form was waved. In Barnet v. Watson,
      
       there was a declaration is case against two, which was served on one who pleaded separately the general issue, and a nonsuit as to the other who was returned no inhabitant. Afterwards the latter came into Court, and became a party. The jury found against all the defendants. On error being brought, it was contended, that the verdict and judgment against the latter, was without issue as to him; for he did not plead : but it was determined by the Court, that he should be intended to have joined in the plea put in by his partner. In Irish v. Schovel,
      
       there was a statement in ejectment, against one defendant, filed before the first term: afterwards the sheriff summoned as defendant another person, found in possession; and it was held, that the statement was right, and the name of the other defendant might be added, after verdict and judgment below; and this Court would consider it as done. In Bar v. Wilson, 
      
       a judgment quod computet, without a declaration, was sustained by the Supreme Court.
    
      Reply. The case of Bar v. Wilson, only proves, that in an action of account render, the judgment is good without a narr, because in that action the writ is special, and sufficiently describes the cause of action ; besides, after the judgment quod computet, the parties made a voluntary reference of the whole cause, which took away the necessity of a narr. The decision in Wenn v. Adams, only proves, that the plaintiff was non prossed for not going to trial; but the Court do not say, that he could have gone to trial without a narr. The principle that governed Irish v. Schovel, was this; that the sheriff having summoned a terre-tenant who appeared and pleaded, he was considered as making himself a party and accepting the plaintiff’s statement, as much as if he had been named in it. So in Barnet v. Watson, the defendant, who came in after he had been returned a non-inhabitant was sup»posed to have adopted the plea of his partner.
    
      
       2 Binn. 83.
      
    
    
      
       2 Dall. 156.
    
    
      
      
        Wash. Rep. 303.
    
    
      
       1 Wash. Rep. 372.
    
    
      
       6 Binn. 55.
    
    
      
      
         3 Yeates, 149.
    
   Tilghman C. J.

It appears by the record in this case, that an amicable action in ejectment was entered in the Court of Common Pleas of Dauphin county: the defendants pleaded not guilty: the cause was tried, and a verdict and judgment entered for the plaintiff; but there is no declaration or description of the land recovered. How can such a judgment be supported? The counsel for the plaintiff endeavours to support it, by producing certain proceedings in the Orphan’s Court of Dauphin county. By these proceedings, it appears, that Samuel Elder, who claimed under a deed from John Maclay, deceased, petitioned the Orphan’s Court for a partition of the estate of William Maclay, deceased, brother of the said John Maclay. A dispute having arisen between Samuel Elder, and the brothers and sisters of William Ma-clay, touching the validity of the deed from John Maclay to the said Elder; the Orphan’s Court, directed “ an issue in ejectment, in which Samuel Elder was to be plaintiff, and William Wallace and others, defendants, in which the question to be decided, should be, whether the plaintiff was entitled to recover, under the deed from John Maclay, to the plaintiff.” The Orphan’s Court having made this order, this action was entered in pursuance of it, But the order of the Orphan’s Court has not been complied with; for when an amicable ejectment was ordered, it was understood, that the necessary form should be used. A declaration was to be filed, and issue joined, as in other ejectment causes. These issues by order of the Orphan’s Courts, are no new things ; they are often directed in cases of disputed wills; but the uniform practice is, to institute an action, aDd conduct it in strict form. And hence it is, that this Court derives its jurisdiction. A bill of exceptions may be taken on the trial. Judgment is entered on the verdict; and a writ of error lies, to remove the record before us. In issues directed by the court of chancery,jhe case is different: after trial of the issue, the verdict is certified to the chancellor, by the court of common lav/ before whom it was tried ; but no judgment is entered, and of course no writ of error lies. Now in the case before us, it does not appear what land the plaintiff sued for; so that the entry of a plea, and joining of issue on the record, is altogether nugatory. To reverse a judgment after trial of the merits, is always unpleasant. But it cannot be avoided. This judgment must be reversed; but in order that the direction of the Orphans’ Court may be complied with, the record is to be remitted to the Court of Cornmon Pleas of Dauphin county.

Gibson J. concurred.

Duncan J. gave no opinion, having been counsel in the cause.

Judgment reversed, and record remitted.  