delivered the opinion of the court. After noticing the state of the pleadings, and the questions thence arising, he proceeded as follows, to wit:

If Bills, the indorser of the note to the plaintiff, be the real creditor, as the defendant contends, no reason is assigned in the-plea why the other two commissioners, who were not called upon, could not have formed the court without applying to a judge of the-County Court. If so, the judge of the County Court had no right to act, and his proceedings are coram nonjudice. And if Bub-bell, the nominal plaintiff, was the real creditor, it does appear by' the plea that Mr. Squires had no right to act, he being father-in-law to Bubbell. The plea therefore, comes short of showing by positive averments, that the persons who formed the court were the ones designated by law to act in the case. But it is contend- ■ ed by the defendants, that the commissioner and judge, having held their court, and admitted the prisoner to the'oath, and given' him the requisite certificates, this furnishes a complete bar to the *257action upon tile prison-bond.

If this be correct, the plea in bar need only have stated those facts, without adding the various other facts in the plea as inducements to those which it is thus contended are sufficient of themselves. The defendants’ counsel refer to several authorities which they consider in point.

In Brayton's Rep. 199-200, in the case of Thornton vs. Robinson and Howard, the court say that the certificates are conclusive. The case is very concisely reported, but it may well be inferred from what is reported, that the plea set forth the whole proceedings, and that the only defect the counsel could find was, that, when the creditor could not be found, the service was made on the attorney of record; and in such an event the statute provides for such service on the attorney. In the case of Smith et al. vs. Quinton, Id. 200 — ‘the court say that the proceedings are regular on the face of them, and that the fraud of the debtor in procuring his certificates should not operate to charge the sheriff or bail. The case in 2 Tyler, 221, is more in point; for the court do incline to the opinion that the certificates alone are a good de-fence for the sheriff or bail. But the case only required a decision that the unsubstantial irregularities, which might possibly avail in abatement, should not vitiate the whole proceedings, after a decision Upon the merits, and what might be said by the court, out of the case, is not of binding force as authority. In 2 Tyler, 358, Brush vs. Robinson, et al—the same court say “the certificates, &c. are a sufficient bar to an action upon the bail bond, without setting forth other than substantially, and as inducement, the mesneprocess. Nothing appears in the case, how fully the prior proceedings were set forth. Hence we may well presume they were substantially set forth. The case of Paine vs. Elyet al. in Chip. R. 37, requires a great degree of punctilious averment of the. proceedings, prior to the certificate ; more, perhaps, in their rea-sonings than would now be required, though the decision itself was clearly correct, the board that acts in the process of swearing-out, being of special and limited jurisdiction, we.consider it cannot be a sufficient defence to set up merely the decision, the taking the oath, and the certificates. The plea must also contain those prior proceedings which show the subject properly before the *258board, so that it may well bo said that they hare jurisdiction. Not that we .would decide that every irregularity which, if pleaded, might avail to abate the citation, shall render void the, proceedings,, after a hearing upon the merits. Where there is fair nofice.to the creditor, a neglect to plead any proper matter in abatement- may be considered a. waiver,, as much in the cases of swearing-out-process, as in other suits. But the plea mugt set up a complaint, and-citation, and no.tice to the creditor, in order to show that the com-r missioners not only have jurisdiction of the subject matter, but, so-have the parties before them, that they have a right to act in the-particular case. This is the case when the proceedings, are. before commissioners: but much more so when one or more judges of the County Court are called-toac.t; in every such-ease;, the plea should slate the disability of as many Commissioners, as there are judges of the County Court who-are. called upon to act. Nothing less.than this.can show that such-judges-have a right to. act; or, in other words, have jurisdiction of the cases. 'AH this was supposed to be law, by the person, who drew the plea in the present case; but he was perplexed with the. want of proper materials to form a plea that would conform to these salutary and practical principles.

The plea states the plaintiff to have no interest in the suit. This was done for the purpose of showing the propriety of serving the citation upon Hills, the indorser, instead of the plaintiff; Should w.e consider this to be correct, and that notice to Hills was all that was necessary, still the plea alleges no incapacity of either of the commissioners, to decide the.case as between Hills and the debtor.therefore, no reason is: set forth for calling the judge to act; of course, the County Court judge, and one commissioner who. granted the certificates, had no jurisdiction, and their doings were void. On this ground the plea cannot be supported.

The plea,however, states that- the plaintiff is son-in-law to Mr. Squires, and cousin to each of the other commissioners. This furnishes a good reason for calling in judges to act altogether, and "excludes all the commissioners. But the plea shows that the business was done by one judge of the County Court, and Mr. *259Squires, who was father-in-law to the plaintiff, and who, of course, could not act in the case, and could have no jurisdiction. If then, the plaintifF, the creditor in the execution, is to be considered the party, the' proceedings are void, even if not otherwise irregular. But the plea 'shows that the citation was directed to be, and was, served upon- 'Hills j and not upon the plaintiff; and the defendant contends that he is at liberty to regard only the party in interest, and that the facts set tip in his plea entitle him to treat Hills as the credit- or, though the execution was not in his favor. This principle is correct, as applicable to payments or offsets of which defendant would avail himself,- and which existed before he had notice of the assignment $ but is not Correct, as applicable to the question, who is the creditor that is entitled to notice ? The statute is express that it must be the creditor in the execution. And how far the', nominal, is -the real plaintiff, whether he has honafide paid for the note, or has only become trustee of the real owner for the purposes of convenience in collection, are questions between the assignor and assignee, with which the defendants have no concern, in relation to swearing-out-process and notice preparatory to the same. Payment made to Hubbell would answer the purpose of the defendants, and notice to him cannot be dispensed with. The defendants, therefore, are not at liberty to urge, as material and traversable- facts, what are alleged in the plea about Hills being still the owner, of the debt. They do not at all aid the defence set up. There is, therefore, no point of view in which this plea can be supported.

The judgment of the court is, that the plea in bar is insufficient, « and that the judgment of the County Court be affirmed with interest and cost.