delivered the opinion of the court
On the 5th of March 1875, the plaintiff appealed from an award of arbitrators in his favor, and gave the requisite security. The record does not show that he made any “ oath or affirmation.” The statute does not require the affidavit'to be in writing: Ross v. *413Dysart, 12 Harris 394. Yet the record should show that the necessary oath or affirmation was actually made. If not made, the omission is fatal to the appeal, if the objection be taken in time. Was it so taken?
The three succeeding terms of the Common Pleas were held in the months of April, August and November, respectively. At the April term no action appears to have been taken by either party. At the August term the defendant entered the plea of non-assumpsit, thus putting the case at issue. In September the plaintiff entered rule to take the deposition of witnesses. They were taken, and filed on the 22d November. The case was then on the trial list for November term, and on that very day was actually called by the court and marked for trial. On the day following, on application of defendant, the case was continued.
Three days thereafter, the defendant applied for a rule to show cause why the appeal should not be stricken off. The rule was granted, and subsequently made absolute.
The record fails to disclose the grounds on which the rule was taken, and the action of the court predicated. On the argument it was stated to he the absence of any affidavit.
Thus it appears no objection was made by the defendant until nearly nine months after the appeal had been entered. The requirements of the statute are for his benefit. He might waive all of them : Mayes et al. v. Jacoby, 8 S. & R. 526 ; Shank v. Warfel, 14 Id. 205; Craig v. Barclay, 12 Wright 202.
The case, however, shows more than the mere passive conduct of the defendant. He had entered a plea thereby imposing on the plaintiff the necessity of preparing for trial. The plaintiff had acted on the duty thus thrust upon him. He had incurred the necessary expense. He was in court ready for trial. Before the jury was sworn the defendant procured a continuance of the cause.
Up to this time the defendant had made no objection to the regularity of the appeal. By acts both of omission and commission he had induced.the plaintiff to believe that all irregularity was waived. He not only waived his rights when he might have spoken effectively, but he gave positive encouragement to the plaintiff to incur costs and expenses. The plaintiff acted upon that encouragement. The application of the defendant to strike off the appeal came too late: Clarke v. McAnulty, 3 S. & R. 364; Sleck v. King, 3 Barr 211; Marks v. Swearingen, Id. 454; Carothers v. Cummings, 13 P. F. Smith 199; Delaware & Hudson Canal Co. v. Loftus, 21 Id. 418.
It follows, therefore, the learned judge erred in making the rule absolute.
The judgment striking off the appeal is reversed, and the case ordered to be reinstated, to be proceeded in according to law.