(After stating the case.) It has been contended, on the part of the plaintiff, that the appeal was properly dismissed, because it is provided, in the 11th sect, -of the act, that if the bail be not regularly entered, within twenty days after the entry of the award on the docket, it shall be the duty of 'the prothono.tary, at the request of the party in whose favour the award was made, to issue execution, &c. There is no doubt, but that if the bail be not entered according to law, the plaintiff may take advantage of the defect, and the Court of Common Pleas, on motion, will dismiss the appeal. Whether, in this case, the mistake of the prothonotary might not, and ought not, to have been amended, I do not say; because there is better ground, on which the cause may be decided. The bail was intended for the benefit of the plaintiff; and therefore he may wave it, and he has waved it, by filing a declaration, joining issue, and keeping the cause so long under rule for trial. It cannot be thought that this act of assembly meant to insist on the entry of bail, when the parties were willing to dispense with it. The counsel for the plaintiff are wrong, therefore, in supposing, that the Court of Common Pleas had no jurisdiction, because bail was not entered — although they are right in saying, that where there is no jurisdiction the consent of the parties cannot give it. I do not recollect an express decision in this Court, that the filing of a declaration, &c. is a waver of bail, under this act of assembly, but I am certain that the principle has been recognised. The case cited from 1 Browne, 95, (Common Pleas of Philadelphia county,) bears strongly upon the point; and from the reason of the thing, independently of authority, I am satisfied that the law is so. *240I am, therefore, of opinion, that the judgment should be reversed, and the record remanded to the Court of Common Pleas, with directions to sustain the appeal, and proceed to the trial of the cause.
Gibson J. concurred. Duncan J. concurred.Judgment reversed, and record remanded, with directions to the Court of Common Pleas to sustain the appeal, and proceed to the trial of the cause.