BY THE COURT.-These proceedings are irregular, and must be set aside, and rendered null. If Mr. Woolly was to be made a defendant in the room of Wright, his clerk, the action against Wright should have been discontinued, and a new one instituted against Woolly. This might have been done by consent of parties; and possibly, this was really intended; but it does not appear by the record to have been done. The declaration which was sent up, is actually against Wright. Proceedings made void. [*] GIBERSON vs. WILBER. ON CERTIORARI. Constable may not buy at his own sale. (a) THE action below, was brought by Wilber against Giberson, a constable, charging him that under color of law, he illegally took a mare of the plaintiff, and sold it under value, and became himself the purchaser. It was objected, that an action would not lie in such case against the constable, he having levied on the goods by virtue of an execution; but the Court being of opinion, that a constable could not legally be the purchaser of goods levied on by himself, and that such a practice would lead to great injustice and oppression, Scudder, att'y for plaintiff. Affirmed the judgment. KISER vs. OVERSEERS of POOR of Frankford. ON CERTIORARI TO SUSSEX SESSIONS. The Sessions may not order one to maintain a grand-child, without notice and a hearing. THE Court of General Quarter-Sessions of Sussex, had made an order on the plaintiff to maintain three of his grandchildren. It did not appear by the record, or any part of the proceedings that the plaintiff had been summoned, or had any notice of the hearing before the Sessions; nor that he was present or any way heard before that court in respect to the order, and this being assigned for error, the Court Quashed the order. (a) Nor may sheriff, 3 Bibb. 450. Marshall, 211. Even as agent for another. 1 [*0] WARD vs. WILKIE and MARSHALL. ON CERTIORARI. Attorney in fact may not sue in his own name.(a) THE defendants in this Court, were the plaintiffs below; and brought their action against Ward, the plaintiff in error, for a debt due to one Thomas Marshall, styling themselves in the state of demand, attornies in fact of Thomas Marshall. BY THE COURT.-This judgment must be reversed. The action should have been brought in the name of Thomas Marshall, to whom the debt was due. If the plaintiffs were really attornies for Thomas Marshall, they should have appeared for him; but had no right of action in themselves. Judgment reversed. DIXON vs. FREEMAN. ON CERTIORARI. In a suit on Tavern Act, verdict must specify which of the penalties (if several) is found forfeited. (b) The FREEMAN brought an action below against Dixon, for selling liquor by small measure, under the act of Assembly. In this declaration, or state of demand, he goes for ten penalties, of ten dollars each, in the whole, $100. The first was for selling by retail, one gill measure or glass of rum. second specified one gill measure or glass of brandy, or spirituous liquor. The third for selling by retail, three gills, half gills, measures or glasses of rum, brandy, wine, or spirituous liquors, being three different quantities, under the quantity of one quart, &c. The other charges were in the same manner, in the disjunctive. The jury found a general verdict for fifty dollars, on which, the Court [*] below rendered judgment. It was objected on the part of the plaintiff in error, first, that the declaration was vague and uncertain; that to enable the plaintiff below to maintain an action, he ought to have set out a specific and direct charge. And second, that the verdict and judgment ought to specify on which distinct charge or charges the verdict was founded; but that by this record the defendant below, was convicted of five penalties on no particular, or certain charges:-And the Court being of that opinion, Russell, att'y for plaintiff. [Reversed the judgment. CRANE vs. CRANE. ON CERTIORARI. THE justice makes the following entry in his docket on the return of the summons, to wit: The plaintiff appeared (a) S. P. Ante. 380. (b) S. P. Ante. 367, and filed his account, defendant did not appear, and I gave judgment for the plaintiff." It was alleged for error, that there was a judgment without trial, apparent on the face of the record; that it also appeared by the record, that the plaintiff did not file any state of demand, but that the judg ment was rendered on a note, which according to the justice's return, was mislaid. THE COURT being of opinion, that here was a judgment without trial, and that no legal state of demand was delivered the justice, Reversed the judgment. [*o] OGDEN vs. DILDINE. ON CERTIORARI. Reference must be of a suit pending. (a) Judgment in figures, error. (6) In this case, a rule of reference was agreed on out of Court, and the referees sat and made report, on which, the agreement and report was brought to the justice, and on which he entered judgment, and that in figures. BY THE COURT.-It hath been repeatedly decided that there must be a subsisting action depending in the justice's court before it can be referred; this judgment is also entered in figures; it must, for these causes, be reversed. I. H. Williamson, att'y for plaintiff. SOUDER vs. STOUT and al. ON CERTIORARI. Action by three, and judgment for one, error. THE action below was brought by Jacob Stout, Francis Denny and David C. Lea, for the use of Jacob Stout. This cause was submitted to reference, and the referees reported in favor of Jacob Stout, and the justice entered judgment in favor of Jacob Stout, taking no notice of the other plaintiffs, and this was assigned for error. BY THE COURT.-It appears that the plaintiffs had been partners, and they brought the action below to recover a partnership debt; as it is noted on the justice's docket that the action was brought for the use of Jacob Stout, it is to be presumed that it was agreed among them that he was to have the money when recovered. So far, that is all legal and (a) S. P. ante. 103, 377. (b) S. P. ante. 60, 82, 85, 92, 163. post. 528. T. and I gave error, the he face of !, that the proper; but notwithstanding this agreement, the proceedings and judgment should [*] have been in the name of all the plaintiffs; and for this error, the judgment must be Reversed. udgment as deli ment. rar. (6) at of the GALE vs. HILL. ON CERTIORARI. THE whole of the proceedings below, including judgment, is contained in the following entry in the justice's docket: Warrant in debt, on a note dated 24th Nov. 1806. The warrant given to Jacob Sailor, constable, and returned with the body of the defendant, and judgment entered in favor of the plaintiff for $60 74 debt, and 68 cents costs. BY THE COURT.-There is no state of demand filed, nor does it appear that any trial was had, but on the constable bringing in the defendant, the justice entered judgment against him; this is too loose a proceeding to be supported. Judgment must be reversed. CRANE vs. HAND, ON CERTIORARI. A justice cannot appoint himself a referee. AFTER the parties had appeared before the justice, they agreed to leave the matter in controversy to three [*] men, of which number the justice was one, after which, the justice makes the following entry in his docket,-6th June we met, and after examining the accounts and hearing the witnesses on both sides, we gave a verdict in favor of the plaintiff for $21 05 debt, and $1 10 costs. On this no judgment was entered. It was urged as error, that the justice could not appoint himself a referee; that no judgment was rendered, and that if it had been, it would have been error, as the justice could not with legal propriety review or render judgment on his report as a referee. BY THE COURT.-The proceeding must be quashed. HEIRS of POTTER vs. POTTER'S WIDOW. ON CERTIORARI. Widow cannot sue heirs for support of a slave without their request. THE action below was brought on the following state of demand: Hannah Potter, widow of Caleb Potter deceased vs. Samuel Potter, jun. Phebe Maxwell and Easter Maxwell, heirs of said Caleb Potter. The plaintiff demands of the defendants one hundred dollars, for keeping Jin, an old and infirm black woman, who was the property of the said Caleb Potter at the time of his death, and for finding her meat, drink and clothing, for six years since the death of the said Caleb, when according to the statutes and customs of the State of New-Jersey, the said defendants, heirs as aforessid, were bound to support and maintain, at all times after the death of the said ancestor, the black woman; but which upon demand, they the said heirs refused to do; [*。] and therefore, the plaintiff (Hannah Potter) brings this suit. The defendants pleaded verbally that they owed nothing. The plaintiff obtained a judgment for 840 08. The defendants brought this certiorari to reverse the judgment. The counsel for the plaintiffs in error raised a number of objections, as well to the proceedings as to the right of the plaintiff below to recover. The one on which the Court decided the case was, that it did not appear by the state of demand, that the maintenance of the wench was at the request, or by the direction or authority of the defendants; that even if the defendants were liable to support the slave, which he denied, yet that it did not lay in the power of any person to furnish that support without their approbation or request, and then bring an action against them for it. He also insisted that the executors or administrators of the deceased, were first liable. THE COURT gave no opinion as to the persons liable to support the slave, nor the manner of compelling it; but were clearly of opinion, that the plaintiff below could not take upon herself to maintain the slave, and then bring an action for such maintenance, and reversed the judgment. MERSHON vs. M'CULLOUGH. ON CERTIORARI. THE action below, was brought by M'Cullough against the plaintiff in error, late constable, who as it is charged in the state of demand, while constable, in virtue of an execution in his hands against the said M'Cullough, took and arrested him, and delivered him to the custody of [*] the keeper of the jail, &c, and also on the same day took and seized certain goods, chattels, and wearing apparel of the said M'Cullough, particularly enumerated, of the value of $100, and on the same day converted the same to his own use, and hath neglected to render an account of the monies arising from the sale thereof, or to pay the same or any part thereof to the plaintiff in the said execution named, in satisfaction of the debt, interest and costs in the execution, or to |