
    Brennan & M'Creary, vs. Burrell M'Lamore.
    
      Writ of attachment issued in the name of D. Brennan. Order hy the court, that “Brennan fy M‘ Creary, plaintiffs in attachment,” have leave to file their declaration. Declaration filed in the names of Brennan St M£ Creary, set aside for the irregularity.
    
    It appeared in the case, that a domestic attachment had been issued, at the instance of Danniel Brennan, against the effects of Burrell M£Lamore. At the spring term, 1823, a motion was made, on the' part of the defendant, to have that attachment set aside, on account of some irregularity, and the property attached, delivered up to the defendant. Thai motion was overruled.
    An order was then obtained, that the plaintiff have leave to file his declaration. The order was drawn up in the name of Brennan and M‘ Creary, and not in the name of Daniel Brennan f and entered in the minutes of the court in that form. A declaration was accordingly filed, in the name of Brennan and M'Creary, against Burrell M‘Lamore. At a special court, held in July following, a motion was made to set aside that declaration for- irregularity; which was granted:
    And this was a motion to reverse that decision, on these' grounds:
    1st. Because the proceedings were regular, and might to have been supported. •
    2d. Because the court refused to permit the plaintiff to amend the declaration, by substituting the names of Brennan and M'Creary, in the place of Daniel Brennan.
    3d. Because the order of the preceding court authorized the plaintiff to file a declaration in the name of Brennan and M'Creary.
   The opinion of the Court ivas delivered by

Mr. Justice Mott.

There is no rule of practice better established than that the declaration and all the subsequent proceedings must be carried on in' the name of the original parties to the suit, indeed the declaration is defined to be “an exemplification or exposition of the original writ, oh which it is founded.” The plaintiff might as well have filed his declaration in the name of any other person, as in the name of Brennan and M'Creary. It does not c-vcn appear that the person who constituted one of the firm of Brennan and M‘Creary, was the same Daniel Brennan, who sued out the original writ; and if it did, it would not have cured the irregularity.

The court.did not refuse to let the party amend his declaration, so as to make it conformable to the original writ. But the amendment proposed, was, to permit him to carry on the proceedings, in the form in which they, then presented. But , that would not have been an amendment; it would have been a substitution of new parties and new proceedings.

With regard to the third ground, it did appear on the minutes of the court, that “Brennan and M'Creary,” had leave to file a declaration. But Daniel Brennan could derive no benefit from tliat order. In fact, no such order was ever made. The plaintiff in attachment, had leave to file his declaration. But that was only an authority to go on with the proceedings which he had commenced, and not to substitute ojthers in their stead. A judge on the circuit, in the hurry of business, seldom attends to the phraseology of every formal order: and it would he a lamentable defect in our system of jurisprudence, if one could not he arrested, which had been entered by mistake.

Much less would the court sanctify an error, by giving effect to one, contrary to its legal import.

The motion is refused.

Huger, Johnson, Colcoclc and Bicharclson, Justices, concurred..  