
    * James Prescott versus Eliakim Tufts.
    Where a writ bears test of a justice of the Common Pleas, who is plaintifi m the suit, it must be pleaded in abatement, if the defendant would avail himself of it.
    Dana, of counsel for the defendant,
    moved in arrest of judgment: 1. Because the original writ bears test in the name of the plaintiff, who was chief justice of the Court of Common Pleas, whereas it ought to have borne test in name of the senior justice, who was not a party. 2. Because the plaintiff was one of the justices, before and by whom the said Court of Common Pleas was holden.
    In support of his motion, Dana referred to the case of The Mayor of Hertford, remembered by Lord Holt, who sat as judge in his own cause, for which he was brought up to the King’s Bench by attachment, and laid by the heels; though, as it is said in one of the books, he got off the easier for that he had been an old cavalier.
    
      Bigelow, for the plaintiff,
    observed that the case referred to was of a judge of an inferior and limited jurisdiction, and the fact might be made to appear in any way; but the Common Pleas was a court of general jurisdiction, respecting which very different rules were to be applied. It does not appear from the record that James Prescott, the plaintiff in this action, and James Prescott, the chief justice of the Court of Common Pleas, are the same person. If this were the fact, the defendant, to avail himself of it, should have pleaded it in abatement.
    
      
       1 Salk 201. — 7 Mod. 1.
    
   And of this opinion were the Court. So the defendant took nothing by his motion.  