
    ELKINTON vs. BENNET, Collector of Northampton.
    CEBTIOEARI TO JUSTICE’S COTJET.
    Bills of exceptions before a justice, irregular. Suit to recover township money, mispaid by an officer, must be in the township’s name.
    The action below was an action of debt. The state of demand was generally for money had and received. Among other things, it was objected to the proceedings below,
    1st. That the state of demand did not set out, with a sufficient certainty, a sufficient cause of action.
    2d. That the action, if any could be sustained, ought to have been brought in the name of the township, instead of the collector.
    [*] 3d. Because the justice refused to nonsuit the plaintiff. It was contended that the action below had been brought by Bennet against Elkinton, to recover back money which he, Bennet, the collector, had paid Elkinton, under the by-laws of the township respecting the loss of sheep killed by dogs; under an idea that Elkinton had imposed on him, and got the money, when in fact he was not entitled to it.
    
      Mr. Griffith,
    
    offered to read a bill of exceptions taken before the justice, on the part of the defendant below, the plaintiff* in this court; to which,
    
      Mr. Ewing
    
    objected. He said the justice had no right to allow the bill; that it was a proceeding not justified by law. That the bill of exceptions was no part of the proceedings of the justice; it was not on his docket, nor required by law to be entered on his docket; that it was a new proceeding, wholly unknown, and unheard of before in the State. That a bill of exception can only be used in cases where a writ of error would lie. That where a writ of error would not lie, a bill of exception could not be used. Pat. 97, Bul. 16.
    
    
      Mr. Griffith.
    
    The plaintiff must have justice done him. according to law. The court will come at the proceedings of the justice in some way or other. It is the practice for the court to make an order on the justice, to send up the proceedings had before him. This must be considered as part of the record : as part [474] of the transcript from the docket of the justice • it is the most correct and satisfactory way to get at the proceedings below.
    
      Mr. Ewing,
    
    in reply. A bill of exceptions is a different thing from a record, it is no part of the record, it belongs to the party taking it; it being no lawful proceeding, in case it should be false, no remedy .can [*] be had; but should the justice enter on his docket any matter falsely, by which a party should be injured, a remedy may be had.
   Kirkpatrick, C. J.

Did not think that the taking a bill of exception before a justice, a regular proceeding; and it may be attended with dangerous consequences to alter the law in this respect.

Pennington, J.

Was of the same opinion.

Rossell, J.

Was of opinion that the bill of exceptions ought to be read.

Bill of exceptions overruled.

Mr. 'Griffith was about moving the court for a rule on the justice to perfect his return to the certiorari, when

Kirkpatrick, C. J.

Observed that ihe believed it was unnecessary, as sufficient had already appeared to show that the money for which the action was brought below was paid out of the township funds; that the town alone was concerned in interest, and therefore, the action ought to have been brought in the name of the township, in which opinion, the Reporter understood Judge Rossell to acquiesce.

Pexsingtov, J.

The ground of the action below is not sufficiently disclosed by the record', to enable me to say with certainty that the action could not be sustained by the plaintiff below, in his own name; but the cause why it does not appear, leads me to concur in reversing the judgment of the justice. The state of demand ought to have disclosed the right. It was held by this court, in the ease of Bruen v. Douglass, (State Rep. 46f), that a general count for money had and received, was not a sufficient state of demand in a justice’s court; and although I gave no opinion in that case for the reasons there given, yet I fully approve of the opinion then delivered by my brethren; and think this judgment ought to be reversed [*] for that cause; there ought to be a specification of the ground of the action, disclosed by the state of demand, in the nature of a bill of particulars; otherwise defendants will not only be exposed to be surprised, but subject to numerous frauds practiced on them under the form of judicial proceedings.

Judgment reversed.  