passing of that Act judgment against the casual ejector was M. T. 1865. conclusive, if none of the defendants took defence to the action.

R. Dowse, in reply.

Before the passing of the Process and Practice Act 1850 an infant defendant was put to his cross-ejectment. The 7th section of that Act empowered the plaintiff to enter an appearance for the defendant who did not appear; the 10th section extended that power to actions of ejectment; and the 17th section enacted that one appearance only should be entered for several defendants. The 12th General Order 1850 first deals with the case of adult defendants who have not appeared; then it provides for infant defendants, and directs that the Master of the Court shall act as guardian for them, and enter appearances for them. 1 Ferg. Proc. and Prac., p. 714; Tidd's Prac., p. 92. The jurisdiction of this Court, when error in fact is before it, is laid down in Jaques v. Cæsar (a). As to costs, the 201st General Order 1853 enacts that costs in error shall be taxed and allowed as costs in the cause. The statute does not alter the law as to liability to costs in error; therefore, when a judgment is simply reversed, the successful party is not entitled to costs in error: Ivers v. Bainbridge (b); Fisher v. Bridges (c); Marshall v. Jackson (d); Wyvil v. Stapleton (e); Bell v. Potts (f). It is true that these were cases of error in law; but it must be assumed that costs in error in fact are governed by the same principles.

At the close of the argument the Court stated that the nonjoinder of the other defendants in these proceedings in error was pressing upon them, and that they wished that point to be reargued.

Macdonogh, for the defendant in error.

The Court should quash this proceeding in error ipso motu; or they should reverse the judgment below as against the two

(a) 2 Wms. Saund. 101.

(c) 4 El. & B. 666.

(e) 1 Str. 615.

(b) 8 Ir. Com. Law Rep. 150.

(d) 4 El. & B. 669, note.

(f) 5 East. 48.

Exchequer.

GREENE

v.

LECLERC.

Nov. 23.

GREENE

v. LECLERC.

M. T. 1865. plaintiffs in error only. The children of Charles Leclerc were Exchequer. not necessary parties to the ejectment. The practice in proceedings in error, before the passing of the Common Law Procedure Act 1853, was as follows-where a judgment had been obtained against several defendants, a writ of error by one did not lie: Hacket v. Herne (a); Knox v. Costello (b)—where the reason is stated to be the inconvenience which would arise if, when there was judgment against several, every defendant might bring a writ of error by himself, and thus delay the plaintiff from his execution for a long time. All the persons against whom a joint judgment is given must join in a writ of error; a writ of error is not amendable at Common Law, nor by any of the statutes; for all amendments are granted for the support of judgments; but the principal design of a writ of error is to reverse them: Walter v. Stoker (c); Ginger v. Cowper and Miles (d); Jaques v. Cæsar (e). If any of the defendants refuse to appear and assign error, they

should be summoned and severed: Hacket v. Herne; Brewer v. Turner (f). It is the duty of the Court to quash the writ: Andrews v. Cromwell (g); Frescobaldi v. Kinaston (h). The writ was quashed on motion for non-joinder: Cowper v. Ginger (i). In the Thesaurus Brevium, p. 301, the writ of summons will be found. The first step is the sci. fa. ad audiendum errores, in consequence of the judgment below having been ad grave damnum ipsorumi. e., of all the defendants. If all the defendants would not join in assigning error, summons and severance followed; then judgment quod sequatur solus was entered in the name of the defendant who wished to bring error: he alone is then answerable for costs. Although the present proceedings are brought under the 175th section of the Common Law Procedure Act 1853, summons and severance should have preceded the issue of the sci. fa. ad audiendum errores; for that writ concludes that manifest

Exchequer.

GREENE

บ.

LECLERC.

error hath intervened "ad grave damnum" of J. A. Leclerc alone, M. T. 1865. out of some thirteen defendants, when it should have been "ad grave damnum ipsorum," which is bad: Ginger v. Cowper and Miles (a). This is the first fatality in these proceedings. Benjamin Leclerc joined J. A. Leclerc in the assignment of error filed the 25th of June. They state that they were both under twenty-one years of age in 1852, and pray a total reversal of the judgment below, and that they may be restored to their rights; omitting all allusion to the other twelve defendants. If the judgment below is to be reversed, it should be reversed only so far as John A. and Benjamin Leclerc are concerned. It is laid down in 3 Bac. Abr., tit Error (K), p. 105, that a defendant in ejectment cannot assign for error, that, being an infant, he appeared by attorney. At Common Law there is no inconsistency in a judgment being entered against certain defendants while proceedings remain pending against others. Judgment against the casual ejector bound all the defendants in ejectment who had been served, and who had not taken defence; yet a pending action might proceed against such defendants as had taken defence. The plea of in nullo est erratum admits that the record is perfect; therefore, while error in law, which taints the whole record, cannot be severed, error in fact, as here, upon a judgment in ejectment being outside the record, can be severed: Vavasor v. Faux (b); Ratcliff v. Burton (c); Green v. Walker (d). If an ejectment be brought for a mansion-house, lands and bog, and if all the defendants are served save one, and if he, an infant, holding one acre, appears by attorney, judgment against the casual ejector binds all the defendants. But, if the judgment be reversed by the infant defendant upon error in fact, the reversal as to his own acre will not operate as a general avoidance. "If an infant and one of full age join in "a fine, and the infant after brings error for the reversal thereof, "it shall be reversed quoad the infant only:" Bac. Abr., tit. Error (M); The Earl of Clanrickarde's case (e); Parker v. Law

(b) 1 Wils. 88.

(a) 2 Lord Ray. 1403.
(c) Cas. temp. Hard. 127.

(d) 2 Lord Ray. 891.

(e) Hobart, 278.

M. T. 1865. rence (a). A special partial defence to an ejectment for non

Exchequer.

GREENE บ.

LECLERC.

payment of rent may be taken: 1 Ferg. Prac., p. 590. Where a judgment is entire, or on a single count, or for error in law, it cannot be severed, but must be reversed entirely: Bird v. Orms (b); Lloyd v. Pearse (c), 2 Tidd's Prac., 8th ed., p. 1236; Everard v. Paterson (d); Rex v. Marlborough (e).

The rule of law laid down in the cases last cited is, that a judg ment being an entire thing, must be reversed entirely; but that when a judgment is not entire and single in its nature-when there are several subject-matters affected by the judgment-when the error affects one only of several defendants, who are not injured by the error of which he complains-the judgment may be severed and reversed, as to one or several of many defendants. On these grounds these proceedings in error are bad. First; the sci. fa. ad audiendum errores concludes "ad grave damnum" of one defendant only, when it should have alleged that all of thirteen defendants had been aggrieved. Secondly; the assignment of error, which is substituted for the old writ of error, is in the name of only one defendant-it should be in the name of all. Thirdly; the assignment of error is by two defendants. How can the refusal of the other defendants to join in these proceedings be proved to the Court? Not by pais surely. Therefore the other defendants should have been summoned and severed.

Dowse (with whom was J. A. Byrne), for the plaintiffs in error. In the 169th section of the Common Law Procedure Act the words "writ of error" are used as comprehending both error in fact and error in law. The 175th section must apply to both forms of error; otherwise the 179th section, in which alone the phrase "error in fact" first occurs, is the only section which deals with the procedure for error in fact. Admitting that, when the words "error in law" occur at the beginning of a section, as in the 170th, 171st, and 173rd, they govern the whole section, "error" (a) Hobart, 70. (b) Cro. Jac. 289.

(c) Cro. Jac. 424. (d) 6 Taunt. 645; S. C., 2 Marsh. 308.

(e) Cro. Jac. 303.

error.

simpliciter, as used in the 175th section, must include both error in
law and in fact. Why should the Legislature abolish by that
section summons and severance in the case of error in law, and not
in error in fact also?
The meaning of the 176th section is, that a
suggestion of error is sufficient; and, although there may be no
suggestion of error on this record (since it is not settled what a
suggestion is), there appears upon the record what amounts to a
suggestion. There is nothing in the 175th section to show that it
is necessary to state upon the face of the proceedings in error that
thirteen out of the fourteen defendants have refused to proceed in
Prima facie all the defendants should join in assigning
error. In all the cases cited on the other side as to non-joinder
of all the defendants, all the defendants had the same ground of
complaint, and were all equally aggrieved by the judgment. Here,
of the fourteen defendants, John A. and Benjamin Leclerc are the
only persons aggrieved. The grievance inflicted is the foundation
of the writ of error: 2 Tidd's Prac., 8th ed., p. 1188. If a feme
covert bring error the husband must join, otherwise the husband
might be aggrieved by losing the society of his wife; and in case of
action brought against a feme covert and others, they may all join
with the husband in bringing error: 2 Tidd's Prac., p. 1189; 1 Roll.
Abr., p. 748 (18). Therefore the rule that all the defendants must
join in error does not apply where the defendants who have joined
were not aggrieved, and where those two only who were aggrieved
have taken proceedings. Several writs of error cannot be brought
by the other defendants, who have no further remedy. The defend-
ants in error should have moved to quash these proceedings for
non-joinder. Their opposition is now too late: Laroche v. Was-
borough (a); M'Namara v. Fisher (b). The defendants who have
not joined can never take proceedings in error; for they are barred
by the 166th section of the Common Law Procedure Act 1853, as
six years have elapsed since the judgment against them was entered.
The other defendants are disqualified by the statute; therefore
they need not be joined in the assignment of error: Oliver v.
(b) 8 T. Rep. 302.

(a) 2 T. Rep. 737.

M. T. 1865.
Exchequer.

GREENE v.

LECLERC.