
    Jewell, in error, versus Brown.
    'The rule that a party, who had the right to appeal, cannot bring error, is subject to qualifications.
    By suffering judgment upon default, a defendant does not admit the jurisdiction of the Court, nor the correctness of the proceedings in the suit.
    A judgment rendered by a court, having no jurisdiction of the person, is reversible on error.
    Thus a judgment may be reversed, when rendered by a justice of the peace, of one county, the defendant’s residence being in another county of the state.
    A judgment in an action of indebitatus assumpsit upon an account annexed to the writ is erroneous, if the account annexed to the writ is against a third person, and not against the defendant.
    Brown, in 1850, brought an action against Jewell, before a justice of the peace, of the county of Somerset.
    The action was indebitatus assumpsit, upon an account annexed to the writ. The only account annexed to the writ, was one against Maria Luce, for a balance due, $10,98.
    Jewell did not appear before the justice, but was defaulted, and judgment was rendered against him for ten dollars ninety-eight cents, damage, and cost two dollars thirty-two cents.
    This is a writ of Error, brought to reverse that judgment. The errors assigned, were, 1st. that Jewell resided in the county of Aroostook, and that, therefore, the justice by whom the judgment was rendered, had no jurisdiction; 2d. that the judgment was recovered, not for a debt alleged to be due from Jewell, but upon a debt alleged to be due from Maria Luce.
    In the assignment of errors, it was alleged, that the judgment recovered was for ten dollars and ninety-eight cents, damage, and one dollar ninety-nine cents, cost.
    Brown moved that the writ of error be dismissed, because:—
    1. It does not allege the error to have existed at the time when the writ was issued.
    2. The error, if any, should have been pointed out by plea in abatement, in the original suit.
    3. Error will not lie upon a judgment recovered on a default. 7 Mass. 475.
    The motion was overruled, and Brown pleaded in millo est erratum.
    
    
      Currier, for the plaintiff in error.
    As to the first assigned error, he cited R. S. chap. 114, sect. 15; Act of amendment, passed 16th April, 1841; Statute of 1842, sect. 3 and 4.
    As to the second point, he cited Smith v. Keen, 26 Maine, 411.
    
      Foster, for the defendant in error.
    The error if any, should have been taken advantage of in abatement. 4 Mass. 591.
    If personal service be made, the action may be maintained in the county where the service was made, unless a plea to the jurisdiction was seasonably filed.
    The mistake, by which Luce’s name, instead of Jewell’s, was inserted in the account annexed to the writ, was amendable, and therefore not subject to revision on error.
    Error will not lie for a defect which was amendable ; neither will it lie upon a judgment on default; 7 Mass. 475; or on one from which" the party plight have appealed, as the original defendant in this case might have done.
   Howard, J.

— The plaintiff in error did not appear in the original suit, in which he was defendant, but judgment was rendered against him on default.

By suffering judgment by default, a party may admit the justice of the claim, but he does not thereby admit the jurisdiction of the court, or the correctness of the proceedings to establish and enforce the claim. He may safely rest upon the assumption that, unless the process be legal, and the service sufficient, and the jurisdiction certain, no judgment will be rendered against him; or if from fraud, accident, or mistake, a judgment should be erroneously entered, that the whole may be revised on error. It would be a hard, and an unsafe rule to be established, that an erroneous judgment shall stand, unless objected to by an aggrieved party, in limine; or that a defendant who did not appear, but suffered default, had waived all right of objection to the proceedings against him, although they might involve errors of law, and of fact.

The rule, therefore, that a party who had the right of appeal, cannot bring error, is subject to qualifications. If he was not duly served with legal process, or was prevented from defending by fraud, or inevitable accident, or did not appear, when duly summoned, and an erroneous judgment has been rendered against him, on default, he may have remedy by a writ of error. Howard v. Hill, 31 Maine, 420; Thayer v. The Commonwealth, 12 Metc. 9; Monk v. Guild, 3 Metc. 373.

The first error assigned is, that the defendant, at the time when the action was commenced, and ever since, resided in the county of Aroostook; that the suit was brought to be tried before a justice of the peace, in the county of Somerset, and that the judgment sought to be reversed, was rendered by him in the county last mentioned. These facts were not controverted, but were in effect admitted by the plea.

By the statute of 1842, chap. 10, sect. 3, the action triable by a justice of the peace, could not have been commenced legally, only in the county where the defendant resided.

The judgment was rendered on the first count in the declaration, “being on the account annexed to the writ.” But it appears that the account annexed to the writ was not against the defendant in that suit, but against Maria Luce. So that judgment was rendered on a count in indebitatus assumpsit, against the party, for the indebtedness of another person having no apparent connection with the suit. This constitutes the substance of the second error alleged.

There is a mis-recital in the assignment of errors, of the amount of costs, which may be corrected by the record.

Both errors are well assigned, and the judgment against the plaintiff in error must be reversed.  