the plaintiff for that reason, but that the objection was overruled by the justice, and the account admitted.

Though the objection does not appear from the record to have been made in a very formal manner, yet I think it was sufficiently so, for the justice to have taken notice of it. But it appears in the course of the proceedings, that the plaintiff's intestate, had leased a house to the defendant, in 1800 and 1801, at $200 per annum, that the defendant's account for these two years, against the intestate, amounts to a considerable sum, and that of this, many items appear to be on the tavern account; but much the greater part, for cash advanced, services rendered, and articles of produce and merchandize sold. The defendant being the greater part, if not the whole of this time, as appears by the account, in debt to the plaintiffs' intestate, he could not from time to time call upon him for the payment of every small tavern bill, which he might have against him. The defendant being in debt, the liquors and other things furnished to the intestate, went for so much in payment. It was to him like paying as he went. Nor indeed from inspecting the items which go to the tavern account, does it appear that that account was extravagant. The furnishing of these items, therefore, appears to me to have been rather a payment of past debts, than a trusting or giving credit within the meaning of the act. (a) The other reasons are not available.

In my opinion there must be judgment of affirmance.
ROSSELL, J.-Concurred.

[*] PENNINGTON, J.-I concur in affirming the judgment.

Judgment Affirmed.

Woodruff, Attorney General, for plaintiff.

VEAL, vs. BROWN.

ON CERTIORARI.

Defect in summons, demand, and venire, fatal.

THE Summons had no seal; the action below was an action of trespass, and the justice entered it in his docket, on the The state of demand was as follows:

case.

Isaac Veal,

To B. A. Brown, Dr.

In trespass and damage, for killing a hog, fifteen dollars.

(a) Acc. 6. Halst. 283.-ED.

The venire commanded the constable to cause to come, &c., six lawful men, being freeholders in said county, who are not of kind to Benjamin Brown, plaintiff, nor Isaac Veal, defendant; nor interested in the cause, &c. The jury found a verdict for plaintiff, ten dollars.

KIRKPATRICK, C. J.-The justice in this case, has sent up, as part of his proceedings, the venire issued for the summoning of a jury. It is for six lawful men, being freeholders, who are not of kind (kin probably is meant) to the parties. These qualifications do not make a lawful jury, according to the opinion which I gave in the case of Sayre v. Scudder, in this term.

I think the judgment must be reversed.

ROSSELL, J.-Did not concur with the Chief Justice as to the defect in the venire, but the summons having no seal, he concurred in reversal.

[*] PENNINGTON, J.-I think that this judgment must be reversed—because the justice hath not entered in his docket the style or nature of the action, which the act of Assembly requires. But hath entered a style of action different from the real one. The state of demand is also defective; it ought, at least, to have stated that the hog killed, was the plaintiff's. Judgment Reversed. Chetwood, for plaintiff.

Judgment in figures, error. (a) On sci. fa. to award execution only. (b) KIRKPATRICK, C. J.-There are two judgments brought up on this certiorari; first, an original judgment, on the case itself, and then another on a sci. fa. post an. et di. and they are both manifestly irregular in almost every particular. As to the original judgment, I shall rest my opinion on the second reason assigned, viz: that the judgment is entered in figures, and not in words at length. This, according to the case of Cole and Petty, and for the reason therein set forth, is error. (a)

As to the judgment on the scire facias, even if a scire facias be a lawful procedure, before a justice, (which is exceedingly doubtful) it must be reversed. The judgment on

(a) Vid. ante. 60, post. 529.-ED. (6) Vid, 4 Halst, 32.-ED.

scire facias is in its nature nothing more than that an execution do issue on the original judgment. In this case the justice has made more of it. He has entered a new judgment for a larger sum, by adding to the former certain interest and costs. But this is error. The legitimate judgment upon sci. fa., is that execution do issue on the prior judgment and nothing else.

[*] In my opinion therefore, let the judgment be reversed. ROSSELL, J.-Concurred.

PENNINGTON, J.-I concur in reversing both judgments: Provided the first judgment was sound, the plain remedy is an action on the judgment. The second judgment, however, is wrong, even if the proceeding by scire facias is correct. Both Judgments Reversed.

KIRKPATRICK, C. J.-This record is totally defective. There is no service of summons; no case filed; no appearance of defendant; no witnesses examined; no trial had, and yet a judgment for $39 45 debt, and $4 22 cents costs, in figures. Let it be reversed.

ROSSELL, J., and PENNINGTON, J.-Concurred.
Judgment reversed.

C. Lloyd, for plaintiff. [*74]

[*] JOHN SEELY vs. O, SCHENCK and DENISE.

ON CERTIORARI.

Partners must sue in their christian names. (a)

KIRKPATRICK, C. J.-The first reason assigned for the reversal of this judgment, is, that the action before the justice was commenced and prosecuted by certain persons assuming the style and denomination of O. Schenck & Denise, whereas the same ought to have been commenced and prosecuted in the proper christian and sir-names of the persons assuming that style and denomination.

It would be of exceedingly pernicious tendency, if men were permitted to assume a hundred different forms in courts of justice; it would render proceedings uncertain, and inconclusive.-Names are the only marks and indicia of men and things, that humankind can understand each other by. If the name of the plaintiff be omitted, therefore, there is a complaint by nobody. This is not to be considered, however, as what the books call a misnomer. That is, a mere mistake in the christian or sir-name, or the using of the one instead of the other. This is a number of persons taking to themselves a fictitious name, and by that name, protruding themselves into a court of justice.

Men associating themselves together for trade and commerce, and other lawful purposes, it is true, may assume a name, under which they may carry on their business, and be known as merchants, &c., and this for the public convenience, because it would be very troublesome, to say the least, to insert the names of a whole company in every entry in books, in bills, and other mercantile negotiations. But by this assumed name, they cannot appear in a court of justice. They can neither sue nor be sued by it. This a privilege appertaining to corporate bodies only. A contrary doctrine would carry with it, a power to any number of individuals, to associate themselves together under an assumed name, and to exercise under that name, many, [*] if not all the privileges of bodies corporate, created by law. This is contrary to the policy of our civil institutions. To sue and be sued in their corporate name, is one of the great privileges always granted to corporate bodies. It can only be authorized by the supreme power of the state. In my opinion the judgment must be reversed. ROSSELL, J.-Concurred.

PENNINGTON, J.-I concur in the reversal of this judgment. The name of a partnership, style, or firm, is not a

(a) Vid. post *137, *870, *984. 5 Halst. 295,-ED.

sufficient designation of the person; and if admitted in legal proceedings, would lead to endless confusion.

Wall, Att'y for plaintiff.

Judgment reversed.

SHOTWELL v8. OVERSEERS OF POOR OF WOODBRIDGE.

ON CERTIORARI.

Suit for township money expended for poor, must be in its corporate name, not in name of overseers of poor. (a)

THIS action was brought by the defendants below, for twenty-five dollars, so much money laid out, expended, and paid by the plaintiffs to the use of the defendant, and at his special instance and request; and founded on an implied promise to refund to the plaintiffs, as overseers of the poor, a sum of money which they contended, that they had laid out in the support and maintenance of a negro man, a slave of the plaintiff in this court. No written order had ever been made for the support and maintenance of the negro. The money was laid out and expended by Lewis Kelly, one of the [*] plaintiffs below. The plaintiff recovered twenty dollars and fifty cents.

KIRKPATRICK, C. J.-As far as can be collected from the return of the justice, this action seems to have been instituted to recover back twenty-five dollars which had been expended in the support of a negro man, named Francis, who was alleged to be the slave of Shotwell, the defendant below.

Sundry reasons are assigned for the reversal of this judgment, most of which are, perhaps, sufficient in the law. Such as go to the form of proceeding merely, I shall pass over, and consider those only which seem to me, to strike at the root of the very action.

In the first place. The money said to have been paid out and expended, was the money of the township. If the overseers, or any one of them, have paid it out in a regular and lawful manner, they have done their duty. They are the agents of the township, for this purpose. They have performed their office. No action will lie against them to recover it back. If the defendant, Shotwell, is liable to refund at all, (and certainly he is so, if the negro was his slave,) he is liable to the township. The money was theirs. The right of action was theirs. The suit ought to have been brought in their name of incorporation.

(a) Vid. post *136. 7 Halst, 124.-ED