The opinion of the court was delivered by
Gibson, C. J.— It is true, that in consequence of the relation in which the plaintiff in error stood to two of the judges, the case of Stiles v. Nelly, 10 Serg. & Rawle, 367, was ruled by the Chief Justice alone. It is also true, that the opinion expressed by me, in Wilson v. Belinda, 3 Serg. & Rawle, 396, remained unchanged: but the opinion entertained by Judge Duncan, coincided with that of the Chief Justice. That case, however, went to the world as a de*206cisión of the court in the last resort, and a rule of property, so that it would be pernicious in its consequence, and ef bad example to overthrow it now, for a mere speculative error. No lasting mischief can arise from it in practice, as the species of property to which it relates must shortly be extinct. On the authority of that case, then, we are of opinion, that the registry cured the defects in the return.
■We are of opinion, also, that the defendant could be concluded by the discharge on the Habeas Corpus, only on proof of notice to defend. Such notice is an implied condition of every contract of warranty, because the fact of an adverse demand, when made, must necessarily lie more particularly in the knowledge of the party to be defended; and it would' be against all reason to fix the contracting party with the consequences of an adverse decision, without enabling him to guard against it. The difficulty arises from an expression in the charge, which, it is said, would justify an inference by the jury, that the notice must be such as is directed by the rules of court. In cases like the present, the notice is not a matter of practice, but a part of the title, and it cannot, therefore, be regulated by the court. No rule of law requires it to be in writing, or the service of it to be proved in a way different from any other matter, in pais. But it must be actual, and not constructive from having been left at the residence of the party, which is sufficient in matters of practice only by virtue of the legislative power of the court. As there was nothing like proof of service on the person, the error, if there were one, was in regard to' a point which did not arise out of the evidence, and it is not the subject of exception here.
Judgment affirmed.