#### Arnold, Duncan, and others *against*Sandford.

NEW-YORK,

October, 1817.

A writ oferror, for an error mfacMjmRom “0unrtpl°asc°“¿ •sS„ec”urvtP,,ci““ the enor —ja If an infant delendant ap*Sey'aSimtt0by*fn¿í^nfeet. 18 of1 the «'.fend-signed as error, by averring him to have been an infant at the to have been an infant at the time of appearanee and plea pleaded, and not at the time of the: rendition of judgment. Although a defendant who was of appear®, LTyb^dUmedl after arriving at háTM waived the cannot b¿ taken advantage of, as toth® error"meuunicssf ^ntbe S" ¡^“ctf «í^rtJf the bl-age!Hm!?8does to assign aa The assigament of errors should,it seems, state that tbo certain age, and *no*more, but the omission of the words *no more%*is a mere informality, which must be specially demurred to. A writ of error may be tested before judgment is given, and it is sufficient if the judgment be given before the return of the writ j and of this, it is not the signing of the judgment roll, but the rule for judgment which forms the test. Although it appear by the record that the judgment roll was signed after the return day of the writ of error, yet it will not he intended that the writ of error was returned before judgment was in fact signed: it is sufficient if judgment were signed before the writ was in fact returned. An entire judgment against several defendants cannot be reversed as to one, and affirmed as to the others. When the defendant demurs to an assignment of errors in fact, he may, after judgment against him on the tie murrer, withdraw it, and rejoin to the assignment of errors.

IN ERROR, to the mayor’s court of the city of *NewYork..*v *J*

The defendant m error brought an action of assumpsit, in the court below, against the plaintiffs in error, as the bailees, for hire, of certain horses, saddles and bridles, chairs and harness, Thp rpx lie 1 c for going a different journey from that for which they were hired, and for riding and using the same improperly cord stated, that the defendants had leave to imparl until the third *Monday*of *August,*1815, on which day they, by their attornies, pleaded the general issue, and that the cause, after being continued until the third *Monday*of .December, in the same ° year, was then tried, and a verdict found for the plaintiff below, iiri. -ri . . r , , , the defendant m error. Judgment was signed on the 9th or 0 0 *July,*1816. A writ of error was issued out of this court, tested **J 1*in *January*term, 1816, returnable the next *May*term.

On the first *Monday*of *August,*1816, the day granted to the plaintiffs in error, on the record, to assign error, they assigned an error in fact, that it appeared by the record of the court below, that on the third *Monday*of *August,*1815, in the term of *August,*in the court below, *Duncan,*one of the defendants in the court below, by his attorney, appeared and pleaded to . , . *J*, 1 *, .*" issue; nevertheless, at that time, when by his attorney he appeared and pleaded, he was under the age of 2! years, that is to say, of the age of 20 years, 4 months and 20 days ; in which case the said *Duncan,*by the law of the land, could not appoint an altorney to defend or plead for him, but ought to have defended and pleaded by his guardian; and because *Duncan,*being under that age, defended and pleaded by attorney, and not by guardian, there was manifest error: and concluded with a veri- ° . XlCatlOn*

*422The defendant deiuuired to the assignment of errors, and the P^a'ntiffs 'n error joined in demurrer.

*Mitchell,*in support of the demurrer.

1. If an error of fact be assigned in the court above, the assignment of errors maybe demurred to. Error in fact can only be assigned in the court where it arose, and then on a writ of error *coram nobis.******Every court which has power to try a matter of fact, may recall its own judgment, for error in fact. Error in matter of fact is to be corrected in the same court where the error is com-milled; not in the court above; In *Knoll's*case,†*Holt,*Ch. J. said, it was beneath the dignity of a house of peers, to try matters of fact; and errors in fact, of any judgment of the K. B; must be redressed there, and not in parliament. For error in fact, the judgment is revocelur, that the former judgment be re*called,*annulled &c.; not as for error *in law,*reversetur.‡

This is an attempt to reverse the whole judgment against all the defendants, on the ground of the infancy of one of them; and is, therefore, a case not entitled to the favour of the court.

2. There is no record before the court; the assignment of errors is, therefore, bad, and a demurrer is the proper mode of taking advantage of the defect. A writ of error will not remove a judgment given after the term in which the writ of error ¡s made returnable.§ In *Canning*v. *Wright,*ǁ a writ of error 3 ” *Q*Was tested the 23d of October5 12 Geo, I, and made returnable in *Michaelmas*term, 12 *Geo.*I.; and by the record it appeared judgment was not given until *Hilary*term following; and the court held it to be clear, that the record was not well removed by the writ of error; and they refused a motion to amend, contrary to the fact. There could be no record or judgment roll, while there, was nothing but mere rule for judgment, and no judgment signed. The doctrine of relation is nothing more than this ; that what is done in vacation, relates back to the preceding term. It is applied only in cases where an execution has been issued for the purpose of defeating a writ of error. Where, after a writ of error was brought, the plaintiff’s attorney artfully delayed signing final judgment, until the writ of error was spent, and then brought an action of debt on the judgment, the court ordered the proceedings to be staid, and a new writ of error to be brought at the expense of the plaintiff’s attorney.***423In *Jaques*v. *Nixon,******the court of IL B. on the same principle, set aside the execution, considering the allowance ot the writ of error as a supersedeas.

It may be said, that instead of demurring, the proper course .would be to move for leave to quash the assignment of errors. If so, it might be pleaded in abatement; and the defendant may plead or demur. The assignment of errors is in the nature of a declaration, and is part of the record, and so a demurrer reaches the defect in the record. Should it be said that a demurrer admits the error, yet so averse is the law to reverse a judgment, that though the defendant confess the error, the court will look into the record, and not reverse the judgment, until they are satisfied, from an inspection of the record itself, that the judgment i,s erroneous.†

3. The error assigned is that *Duncan*appeared and pleaded *by*attorney, in the term of *August,*being an infant, that is to say, of the age of 20 years, 4 months, and 20 days; but it is not added that he was *no more,*as is done in all the precedents,‡ in *December,*four months after, *Duncan*appeared, *sui juris,*by his attorney, at the trial of the cause, and contested the issue, thereby adopting the plea. This is a waiver of the error in appearing. Infancy must be averred, and proved or admitted. The plaintiff cannot take issue on the averment ©f the defendant’s being 20 years, 4 months, and 20 days old, under the *videlicet,*for he might show that he was 20 years, 11 months, and 10 days old. Every averment in pleading must be precise and positive. If the averment in the assignment of error is true, *Duncan*was an infant when he sued out the writ of error, and he is, though an infant, prosecuting that writ of error. If, then, the judgment below should be reversed on the ground of the error in fact assigned, the judgment of reversal would be erroneous; for if an infant plaintiff sues by attorney, instead of suing by guardian, it is error, though judgment be given in his favour.§

If an infant commences by guardian, and afterwards proceeds by attorney, it is a discontinuance of the writ of error. In *Carre*v. *Barker,**ǁ***which was error from the common pleas, the error assigned was that the defendant, being an infant, appeared in the C. B. by attorney, and not by guardian, and being admitted by his *guardian*to assign that for error, he afterwards proceeded by. his attorney, the entry being, *at ndnch day the-**424said *C. by his attorney aforesaid,*&c. and this was adjudged to be a discontinuance of the writ. In no part of the record does the infant here appear to be prosecuting by his guardian.

4. Infancy is a personal privilege, and can be taken advantage of only by the infant himself. The infancy of one defendant does not take away the right of action against his co- defendants ; nor can one defendant take advantage of the infancy of his co-defendant. The plaintiff may enter a *nolle prosequi,*as to the infant, and proceed to judgment against the other defendants.* So, the judgment may be reversed as to the infant, and affirmed as to the other defendants. . In England, where a *fine*is levied by an infant, and an adult, it may be reversed as to the infant, and stand good as to the adult.

*Sampson,*contra.

In the K. B. where there is a mistake of its *process*or error of *its clerks,*the court will reverse, on writ of error, though it be in the same term; but in the court of C. B. the rule is different; there the court may correct its own errors of process or mistakes of clerks, in the *same term,*without any writ of error, but if the term elapses, there must be a writ of error returnable to the K. B. So, where there is an error in fact in the K. B. it may be reversed in the same court, by writ of error called *coram nobis*resident.† Though *Comyn**‡***says, error in fact is examinable in the same court, it must be understood in reference to the K. B. only; and the cases he cites,§ shows it to be so. It was formerly doubted whether the K. B. could reverse its own judgment ;ǁ but, afterwards, upon great argument on writ of error, it was decided that it could.** The reason given why the K. B. should correct its own errors in fact, is conclusive to show that the C. B. cannot correct its own errors of fact. The reason given is, if the error could not be examined and corrected in the K. B. it could be examined no where ; for it is not consistent with the dignity of the court of parliament to take cognizance of matters of fact; and it cannot be done in the exchequer chamber, for it is not within the statute of *27 Eliz.*c. 8. allowing writs of error from that court to the IC. B.

There are numerous cases to be found in the books, of writs of error to the C. B-, to reverse a judgment in that court for an error in fact. In *Dennis*v. Dennis,†† the error in the C. B, for which the writ was brought, was the appearance of an *ideot,*by attorney. *Sergeant Williams,*in hip note to *Jaques*v. Cesar,‡‡*425puts the very case of an infant appearing by attorney, as an example where an error in fact is only examinable in the K. B. or the same court on writ of error.

It is a mistake to call this a writ of error *coram nobis*or co-*ram vobis.*There is no such writ, as a writ of error *coram vobis*to the court of C. B. to examine any thing. The writ of *coram nobis*is to the K. B. only, and is distinguished by leaving out the *certiorari*part, there being nothing to remove. The writ of - *coram nobis resident*is to the C. B., but it has the certiorari clause, and it lies only where the writ *de*errore, &c; has been quashed for some variance, and this second writ recites the former, and is allowed generally in court, and commands the inferior court to return the record, still remaining *before*them, to the K. B. In *Walker*v. *Slokoe,******where the writ of error was quashed in the K. B. two writs of error *coram vobis resident*were successively issued, the first being wrong.† There is also this difference between the writ *coram vobis resident*and the writ *de*errore, that the latter is not, of itself, a supersedeas, and, therefore, a motion was made that it should be a supersedeas, which was allowed by the court. In that case, too, the error assigned was an error in fact, the death of one of five defendants before verdict.- And this writ of *coram vobis*issues only where the writ *de errore*is quashed for variance; for in other cases, though the writ be quashed, the record being once renewed, remains in the K. B. and a new writ of error may issue in the nature of a writ of mandamus.

A writ of error lies only fiar some' defect in substance, not aided by common law, nbr amendable by the statute of jeofails.‡ Now, where an infant plaintiff appears by attorney, it is aided where the verdict is for him; but where an infant defendant appears by attorney, it is not cured by the statute; § and, therefore, he may have his writ of error.

Again; though the assignment of errors does not state that the defendant was an infant at the time judgment was rendered, as well as at the time the plea was pleaded, it is enough. It may be that he came of age after the verdict. The *gist*of the error is his appearing and pleading by attorney, and not by guardian. The mischief is in the verdict and judgment in such a case. All the precedents are so; in none of them is the age of the defendant at the time of rendering the judgment insisted on. The error always insisted on is, his appearing and plead*426ing by attorney ;* but it does appear sufficiently that he was an infant at the time of rendering the judgment below, for it is averred that on the third *Monday*of *August,*1815, he was 20 years> 4 months, and 20 days old, so that he came of age in April, 1816, and judgment was rendered in *December,*preceding» These facts appear on the record, and there are admitted by the demurrer.

Again ; it is said that suing out the writ of error by attorney . . *r*i is a waiver or the error, The writ of error is the beginning of a new suit, in which the party seeks to be restored to what he _ r *J*. . . . . , has lost. He has done no act.in the court below, since he appeared there as an infant.

Again ; it is objected that the averment of the precise age is under a *videlicet ;*but it is either immaterial or material; if material, it is not the less so on that account.†

The reason of the decisión in *Carre v. Barker,*appears from' the *Book of Entries,*(288.) After the defendant brought his action, by guaydian, he appointed an attorney in the same suit, though still an infant. It was no longer the same person before the court, nor the same suit, and was, therefore, a discontinuance..

But it is said, that as the writ of error was returnable before the judgment below was rendered, the yecord is not removed. The judgment is of *December*term, 1815, before the writ of error issued, and though the plaintiff may háve delayed to sign judgment, in order to defeat the writ, the pourt will not sanction it, or allow the plaintiff to take advantage of his own delay, to the in-' jury of the defendant. In *Regindoz*v. Randolph,‡. the writ of error being returnable before judgment was quashed, and the plaintiff in error paid costs, because he had used the writ after it had expired; but the court said, that if the defendant in error had entered continuances, on purpose to defeat the writ of error, they would have made him pay costs.

A writ of error bearing *teste*before the judgment is good, provided judgment is given before the return of the writ: the. judgment refers to the first day of term, and a writ of error returnable after that day will remove the record, whenever the judgment is signed.§ But though the writ be irregularly sued out, and liable to be quashed in the court above, yet the record *s remove(j; ^ it>s rightly described, and it remains in the court after the writ is quashed.ǁ Appearance cures all errors and defects of process.**

The signing of judgment relates back to the first day of the, *427term in which judgment was given; and where an attempt is made to keep back the judgment to avoid the effect of a writ of error, the court will set aside the execution.*

Again; it is said, the judgment is to be recalled or reversed, so far only as it is erroneous. But here the judgment is one and entire, and if reversed as to one defendant, it must be so as to all.†

*

 ero. *Jac.*

†

*3saik.*145.

§

*2*Ld. Raym. 1179. *Willson*v. *Ingoldshy.*

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 l5al-

**

*Arden*v. *Lumby,*Barnes, 250.

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 279.5 *sad, us.*

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 12 *b„c. as*.*117>118*

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 2 *luV’s*sk<ncs,490‘

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 Ciu 4-*?Hoafjbr*Sr 2123b *I.Smnd'*

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 Cro, Jac. 250.

*

*Hartnees*v. *Thompson and others, 5 Johns. Rep.*160. *Kirby's Rep.*114.

†

*Fitsherbert, If. Ji. 21. (49.) Í Sir.*127.

‡

*5 Com. Dig. Plead.*695. (3, *£.*1.) ! 1 *Sid.*208. 1 *Roll Abr.*746, 747.

ǁ

 2 *Leo.*74.

**

 4 Cro. 106. IW 157.

††

 2 SctiiitZ 308. 1 *Bun.*4lo.

‡‡

 2 Saimti. 101. n. I.

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*earth,*as?,

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 see also cw.

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1 *Ron. Jbr.*aí%f.‘jz'^ *S'*

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 i ff. a /„

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 287 pi. 1,3. ' " lb• es. *ehx.*seo. 747 778. *Liber Inirand*288.' *Moore, Xieo*180 2o 9 *cro.*sir *wm. Jones,*432. *Styles*pr *Reg.*288. *sco*so.».' *modus Xntr*284. *•¿Johns.*Rep.íes. 2 *Savnd.*lot. *a.*D-1* .

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 I ChxttyPi. ,1U7.

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 S *Sir.*834.

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 2 *same.*" “ e"

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 279- las.

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*Cro. Jac.*274= 303 289. *Rolk*Abr. 776 2 Satrnd„ 101 f. n> 71s,'77®-*¡¡¡3?3¡£*^¡”¿7 408~

Thompson, Ch. J.,

delivered the opinion of the court. The first question raised on the argument, is, whether error in fact can be assigned, on a writ of error, *coram vobis.*It was contended, that error in fact is only to be corrected in the same court where the cause was commenced, by a writ of error *coram nobis.*This is certainly against what has been the universal practice with us, as to writs of error to inferior courts, and we apprehend the objection has no foundation in principle. It is true, we find it laid down in the *English*books, that for error in fact, a writ of error will not lie from the exchequer chamber, or the house of lords, but the reason assigned for it shows that no such rule can apply to this court. Error in fact must be tried by a jury, and no such trial can take place, either in the house of lords, or in the exchequer chamber. Hence the necessity of a writ of error *coram*nobis. Although in England; error in fact may be tried on a writ of error *coram nobis,*in the common bench, yet, we find that error in fact is assigned, sometimes, on a writ of error from K. B. to the C, B. The case of *Carre*v. *Barker, (Cro. J.*250.) is one of this description> and infancy was the error there assigned. This court can issue a *venire*for a jury to try the fact of infancy. There can, therefore, be no reason why this error should not be corrected here.

It is said, however, that the error is not well assigned in this case, because it only avers the infancy at the time of appearance and plea pleaded; whereas the averment should have been, that he was an infant at the time of the rendition of the judgment. This position does not seem to be supported by any adjudged cases; and it is not warranted by the precedents. (2 *Lil.Ent.*490.) The reason urged why the infancy should be referred to the time of the rendition of the judgment is, because the appearance and defending the cause, after the party attained his full age, would be a waiver of the error. Admitting that such appearance and defending the action would be a waiver, that could not be taken advantage of on this demurrer, unless *428the fact appear from the record, and, therefore, admitted by the demurrer. No such fact appears. The time when the judgment roll was made up and filed cannot, certainly, affect the question as to a waiver. It must, if at all available, be the appearance and defending the action at the trial; and, at that time, *Duncan*had not attained his full age, as is to be collected from the record. He was twenty years, four months, and twenty days old, on the third *Monday*in *August,*1815 ; the trial appears to have been in *December*following, and the rule for jugdment must have been entered at that time, according to the course and practice of the courts of common pleas.

In assigning the infancy as error, there may, perhaps, be an informality, in not alleging that *Duncan*was *no more*than of the age set forth. This, by the precedent before referred to from *Lilly,*appears to be the form. But I apprehend this is an informality that would, at all events, require a special demurrer. The assignment of error alleges that he was, at the time of appearance and pleading, under the age of twenty-one years, to wit, of the age of twenty years, four months, and twenty days. This would seem to contain, in substance, every thing that was material and necessary.

There is no foundation for the objection, that the writ of error was sued out before the judgment was rendered in the court below.The rule for judgment must have been in *December,*1815; and the writ of error was not sued out until the *January*following. *A*writ of error may be tested before judgment is given. It is sufficient if the judgment be given before the return of the writ. This is the usual course for preventing execution. (2 *Tidd’s P.*1062. 1 *Johns. Rep.*493.) It is not the signing of the judgment roll, but the rendition of the judgment which forms the test. The signing is the mere authentication of the judgment. In the case of *Jaques*v. *Nixon*(1 *Term Rep.*280.) it is admitted to be the settled practice to sue out a writ of error before judgment is actually signed. It cannot be true, in fact; as was' suggested on the argument, that the writ of error was returned and filed before the judgment in the court below was actually signed; at least, that is not to be intended fronj any thing appearing on the demurrer book. The judgment) it is true, appears to have been signed in *July,*1816, and the writ of error to be returned in the preceding *May*term of this court. But if the return, in point of fact, was made in the *May*vacation, it would relate back to the term-; and it cannot be intended that the *429record was signed after the writ of error was, in fact, returned and filed in this court, with the record of judgment in th~ court below annexed to it.

We cannot reverse the judgment as to *Duncan,*and affirm it as to the others. Where the judgments are distinct, we may in part, and affirm in part, as in cases of damages and costs; but when the judgment is entire, there must be a total affirmance or reversal. This point was settled in this court, in the case of *Richard*v. Walton, (12 *Johns. Rep.*434.)

According to the case of *Dewitt*v. Post, (11 *Johns. Rep.*460.) judgment of reversal, for error in fact, is *revoeetur.*The defendant may, therefore., if be chooses, have leave to his demurrer, and rejoin to the assignment of errors.

Judgment accordingly, with leave, &c.

‡

 Dewitt *v. Port, 11 Johns. Rep.*460. Tidd's Pr. 1058, 1057. *1126. 2 Bac br.*503. 2 Comyn's Rep. 600 2 Crompton's Pr 395 2 Sellon's Pr. 531. 1 Str. 127. 607.