yPHIS was an action for misconduct of toe master of plaintiff51® -*■ vessel. A trial was had at this term, aad a verdict given for the plaintiff, and £ 70 damages assessed ; and the defendant’s counsel moved ait arrest of judgment; for that the writ had been issued and signed by the deputy clerk in. his own name. *408though it bore test in the name of the principal clerk. The de» iendant’s counsel relied upon the constitution of the state, section 36, “ all writs shall bear teste and be signed by the clerks of the respective courts.” E contra were cited 5 Geo. 1, cb. 13, enforced by 1777, ch. 2, sec. 35 — 1768, ch. sec. 45.
The plaintiff’s counsel admitted that error had been committed in issuing the writ, but the words of 5 Geo. being, “ that “ where any verdict hath been or shall be given in any action, “ suit, bill, plaint, or demand, the judgment therefor shall not be “ staid or reserved, for any defect or fault, either in form or “ substance, in any bill, writ, original or judicial, or for any va» “ riance in such writs from the declaration or other proceedings,” such error was cured by the verdict, or rather could not be resorted to aftei verdict: again, the defendant having appeared and pleaded to issue, that is, a waiver of all objections to the process, and he can never afterwards make any such objections. 1 Str. 155. Salk. 59. Str. 157. Yelv. 56. 1 Livz. 201, 261. 2 Wash. 79. i Vez. 386. 8 T. 356. 1 E. 642, 649.
E contra.
The defendant’s counsel said the act of 5 Geo. 1, ch. 13, being enforced by the act of 1777, is to be considered aa then enacted by the legislature ; and as it dispenses with what the constitution requires, is a void act: it says the delendant shall not take advantage after verdict, of a substantive defect in the writ: the constitution makes the writ to be no writ, if not bearing teste and signed by the clerk. Then there is no writ to give the court jurisdiction.
Referred to the Supreme Court»