delivered the opinion of the court. 3"-I It does not appear to the court upon the record when the writ issued in this action. We cannot regard the certificate of the prothonotary upon the present argument. It was incumbent on the defendant during the trial, to object to testimony of words spoken af-ter the institution of the suit, and to have ascertained when the writ issued, as a fact. That subject is not now open to inquiry.
It is an invariable rule, with regard to arrests of judgment upon matter of law, that whatever is alledged in arrest of judgment must be such matter as would, upon demurrer, have been sufficient to overturn the action or plea. 1 Crompt. Pract. 327. There cannot be the smallest doubt, but that this declaration, laying the speaking of the words on the 1st May 1802, would have been good ; and therefore the defendant ought not to have prevailed in arrest of judgment.
It also appears from the cases cited by the plaintiff’s counsel, that a writ of error will lie in a case where judgment has been arrested; and it would seem that the English practice on this head was mistaken in 2 Johnson 101.
The judgment in the Common Pleas therefore must be reversed, and judgment entered for the plaintiff.