wards of 80 dollars; that he was not served with process, and had no knowledge of the suit till after judgment had been rendered and execution issued, and prays for a perpetual injunction. The answer admits the judgment and execution, and avers that complainant had notice of the suit before the justice-that he appeared at the trial and admitted the debt to be just, on which judgment was entered against him. The cause was submitted on bill and answer. By the COURT. Let the injunction be dissolved and the bill dismissed. 2 HAMMOND, 24. NUMLIN v. WESTLAKE. JUDGES PEASE AND BURNET. 1825. Where a suit is brought in the name of one person for the use of another, it is not necessary to show an assignment of the subject of the action It appeared from the record, that a certiorari had issued from the Common Pleas of Gallia, to John Kerr, a justice of the peace, who returned the same with a transcript annexed, from which it appeared that a summons issued in the name of Jane Scott for the use of Workman, against Samuel Westlake, which was returned served. That defendant appeared and confessed judgment for $21 00 and cost. That sundry executions had been issued by the justice, on which no property was found. That the proceedings before the justice had been staid by an injunction which was afterwards dissolved. That the justice then issued a summons on the injunction bond, in the name of Scott, for the use of Workman, against the defendants Samuel Westlake and his securities. That the defendants appeared, made no defence, and that judgment was entered by the justice for the penalty of the bond, to be released on the payment of $28 47. After the return of this transcript diminution was suggested, and a further return obtained, setting out the original note, on which the suit was brought. It did not appear from the note that it had been assigned to Workman. Pending the certiorari, Jane Scott died, and N. Numlin, administrator, was made party. The following reasons were assigned on the certiorari: 1. "The suit was brought in the name of Jane Scott, and the judgment was rendered in the name of Jane Scott, for the use of Workman." 2. "It does not appear that Workman had any interest in the note on which suit was brought, as there was no assignment, or order by Jane Scott to Workman for the payment of the same to him." 3. "The judgment does not agree with the writ.” On these reasons the court of Common Pleas set aside the judgment of the justice, and rendered judgment against the defendant in certiorari for cost, to reverse which this writ of error was taken. The error relied on is, that the court of Common Pleas set aside the judg ment of the justice, and rendered judgment in favor of plaintiff in certiorari, By the COURT. The assignment in this case renders it necessary to examine the reasons filed in the court below. The first and third reasons are not true in point of fact. The transcript shews that the original summons issued in the name of Jane Scott, for the use of Workman, and that there is no disagreement between the writ and judg ment. The second reason does not seem to be very material. As the note was not assigned, the suit was properly brought in the name of the payee. The additional words, for the use of Workman, were intended to show that he had a right to receive the money when it should be collected. The want of an assignment, or an order on the back of the note, does not disprove that right. It might have been created by a separate instrument, or a parol agreement, the validity of which could only be questioned by the payee. It is a matter of no interest to the defendant to whom the money belongs; it is enough for him to know, that the title to the note is in the plaintiff, in whose name the suit was brought, and that a second action cannot be sustained against him for the same demand. It is a common practice in the courts of this state to designate in this way the person for whose benefit a suit was brought. When it is necessary to commence it in the name of the original obligee, or payee, and it has been considered a sufficient authority from the nominal plaintiff to justify the officer in paying the proceeds of the judgment to the person designated, where no objection is made. It has been treated as an acknowledgment, by the plaintiff, that he was a trustee, suing for the use of another, and it appears unnecessary to inquire in what way the trust was created, as long as the trustee is disposed to acknowledge it, and the interest of third persons is not affected by it. On these grounds we are of opinion that the court of Common Pleas erred in setting aside the judgment of the justice. Judgment reversed, and cause rendered for further proceedings. KNAGGS v. CONANT. JUDGES BURNET AND SHERMAN. 1825. When a cause is certified to the Supreme Court, from the court of common pleas, on account of he interest of the judges, the parts upon which the interest arises, must be set out in the certificate. It was certified to this court from the court of Common Pleas on the ground that there was not a constitutional quorum of disinterested judges to try it. The certificate accompanying the record was in these words "Whereupon this cause being called by the honorable court in chancery, E. Lane Esq. solicitor for the defendant suggests, that there is not a quorum of judges qualified to try this cause on account of interest, and this appearing, the clerk of our said court, according to the statute in such case made and provided, certifies the pleadings to the Supreme Court." The court having inspected the record, refused to take cognizance of the cause for want of jurisdiction, and ordered the transcript to be sent back to the common pleas of Wood county. By the COURT. The statute provides, that if in any suit or action in the court of Common Pleas it shall so happen that there is not a sufficient number of disinterested judges of such court, to sit on the trial, it shall be the duty of such court on the application of either party, to cause the facts to be entered on the minutes of the court, and also to order an authenticated copy thereof, with all the proceedings in such suit or action to be forthwith certified to the next Supreme Court of the county, which Supreme Court shall thereupon take cognizance thereof, in like manner as if it had been originally commenced in that court, and shall proceed to hear and determine the same accordingly. The jurisdiction of this court therefore depends on the existence of an interest in the court below, which must be ascertained by the record. The law requires the facts, from which this interest is inferred, to be entered on the minutes and certified to the Supreme court with a transcript of the proceedings. We are not to rely on the opinion of the court of Common Pleas, or of counsel in the case, that there is not a constitutional quorum of disinterested judges. We must be furnished with record evidence of the facts from which that conclusion is drawn. Judges and lawyers frequently differ as to what amounts to evidence of an interest, and, as our jurisdiction depends on the reality of such an interest, we must be furnished with the facts and form an opinion for ourselves. In this case it does not appear what the facts were, or that the Common Pleas directed any entry or certificate to be made. It is merely stated, that on the suggestion of counsel the clerk certifies, &c. On such a certificate as this we cannot venture to proceed, as it does not furnish us with evidence from which we can ascertain that we have jurisdiction. The letter and spirit of the statute requires that the courts below should ascertain the truth of the facts, from which the interest of the judges is inferred, and that they order those facts to be entered on their minutes, and certified with a copy of all the proceedings to this court. HARTSHORN v. WILSON. JUDGES BURNET AND SHERMAN, Error in fact may be assigned on certiorari, 1825. A judgment in attachment before a justice of the peace, may be set aside on certiorari, upon proof that the defendant was a resident of the county where the writ issued. The facts were these. Hartshorn having made affidavit of a debt due from Wilson, and that he absconded to the injury of his creditors, sued out an attachnt before a justice of the peace, by virtue of which the constable to whom it was directed attached a yoke of oxen. Judgment was afterwards entered in favor of plaintiff, and execution issued. Wilson removed the proceedings to the Common Pleas by certiorari and assigned for error that before and at the time of suing out the writ of attachment, he was living and residing in the said county of Sandusky, and that from the day of the sueing out of the writ until the rendition of the judgment he was constantly within the county at his usual residence, pursuing his ordinary business. The defendant demurred-the court below sustained the assignment and set aside the judgment of the justice, to reverse which the writ of error was brought. The error assigned was that the court of Common Pleas erred in setting aside the proceedings and judgment of the justice. The cause was submitted without argument. By the COURT. The question presented in this case, is whether the plaintiff in certiorari, against whom judgment has been entered, on a writ of attachment, issued by a magistrate, can assign for error the fact that he was a resident of the county where the writ issued, and had not absconded as was averred in the affidavit on which the attachment issued. The writ of attachment is given by statute and can be issued only against absconding debtors, or such as do not reside within. the county for convenience or from the necessity of the case, the justice is authorized to receive the affidavit of the creditor, that his debtor absconds, or is a non resident, and on that evidence to issue the writ, but the legality of the process depends on the fact, and not on the affidavit, which is received as evidence of the fact. The process against a resident must be a summons or capias on which personal service is required-he must have a day to answer before judgment-he is entitled to a stay of execution, and his property is not liable to be taken in the first instance as in case of an attachment. The statute makes this distinction, and it is not in the power of a creditor, by perjury or mistake, to do away its legal obligation, or the right of the debtor to insist on it. Process. may issue by mistake, and proceedings on it be sustained until the mistake is judicially ascertained; but whenever that is done, the party injured is entiled to relief. Individuals are not at liberty to change the law, or by fraud, or mistake to create a jurisdiction, not known to the law; and when such an attempt is made, the proceedings cannot be sustained after the truth is judicially known.. An attachment founded on an affidavit taken in conformity with the statute, must be considered prima facie as legal, and will sustain the writ and the proceedings had on it; but as this mode of proceeding is not authorized against a resident, who does not abscond, whenever it is ascertained that the defendant is a resident of the county and has not absconded, proceedings must be staid.— The remedy by attachment being founded on the alleged absence of the defendant, personal notice is not required; the proceedings are ex-parte-the defendant has no day in court; judgment may be obtained and his property sold without his knowledge and before it is in his power to take advantage of the error. It seems necessary, therefore, to prevent abuses of legal process in cases like this, that the party injured should be permitted to assign the fact for error, on a writ of certiorari; and we do not discover any thing in the prac tice, nconsistent with the principles which govern proceedings in the nature of appeals in other cases. On a writ of error, the plaintiff may assign for error, matter of fact not apparent on the record, and put the defendant to take an issue, either on the fact or on the law, which seems to be the course pursued in this case. DECISIONS IN BANK. 2 HAMMOND, 31. 1825. HAMMER v. McCONNEL. Process against two, one not served, declaration against one, appearance and plea by one, verdict and judgment against both in Supreme Court; the judgment may be amended at a subsequent term by striking out the name of the defendant not served. This case came before the court upon three separate motions, made in the Supreme Court for Tuscarawas county, and adjourned for decision to this court. The case was this: Hammer brought an action for goods sold and delivered to John and Alexander McConnel, as partners in trade-process issued against both, but as to John McConnel was returned not found. The declaration was filed under the statute suggesting the return of non est. as to John-Alexander appeared and pleaded to the action separately, and in the court of common pleas a verdict passed in his favor. The plaintiff appealed to the Supreme Court, where a verdict was found for the plaintiff. The verdict was returned as against both John and Alexander, and a joint judgment was rendered against both. At a subsequent term, the plaintiff moved for leave to amend the judg ment by striking out the name of John McConnel. The defendant moved to set aside the verdict and judgment as irregular and award a venire facias de novoand also, in the event this motion should be overruled, he moved for a writ of error coram nobis. Wright, for the plaintiff. Tappan, for the defendant. By the COURT. The verdict in this case, is a substantial finding for the plaintiff. The issue was between the plaintiff and Alexander McConnel, and upon that issue alone the jury could decide. There is no difficulty in understanding how John McConnel was connected with the case, and it is perfectly easy to see how it happened that his name was included in the verdict. It was a mere formal error. When the clerk receives the verdict, it is always upon the terms, that the court may correct matter of form, not touching matter of substance. The verdict against a party to the contract, but not a party to the suit, was an informality and nothing more. It was the duty of the clerk to record the verdict according to the parties at issue, and to have entered the judgment in the same way. Had the mistake in the verdict, been discovered, as soon as the jury left the box, can there be any doubt but that the court would have corrected it, and directed a judgment conformable to such correction? We think there can be none. mere clerical error, it is still amendable. Leave is accordingly given to make As a |