
    Arnold and others against Sandford.
    Where in error to a court of C. P. the judgment below was revoked for error of fact, to wit, the infancy of one of the defendants ; the plaintiff in error was held entitled to costs under the 13th section of the act, (sess. 36. ch. 96. 1 N. R. L. 343. 346,) it being substantially a reversal of the judgment ; and, m such case, the defendant below may be ordered to appear and plead de tiodo, to the declaration removed into this court; having refused to rejoin to the assignment of errors, after leave given for that purpose, on withdrawing a demurrer.
    THE court, in October, 1817, (14 Johns. Rep. 417.) on a demurrer to the assignment of errors in this cause, which was of an error in fact, to wit, the infancy of Duncan, one of the plaintiffs in error, gave judgment that the judgment of the court below be revoked, revocetur; with liberty to the defendant, if he chose, to withdraw his demurrer, and rejoin to the assignment of errors. A certified copy of the rule for judgment of reversal was served on the attorney of the defendant, on the 2d of November, 1817, but he had not thought proper to avail himself of the liberty given to rejoin to the assignment of errors. A question having arisen, before the Recorder of New-York, as to the taxation of costs, it was, by consent of the parties, submitted to the court, whether the plaintiffs in error are entitled to their costs, under the 13th section of the act, passed April 12, 1813, (1 N. R. L. 343. 346.) which gives costs to the plaintiffin error, on reversal. It was also submitted, whether the defendant in error, not choosing to rejoin to the assignment of errors, is not entitled to a rule on Duncan, the defendant below, to appear and plead de nova.
    
    
      Sampson, for the plaintiffs in error.
    He cited 6 Johns. Rep. 104. Styles'1 s P. R. 288. 2 Saund. 319. 11 Johns. Rep. 460.
    
      Slosson, contra,
    contended, that the plaintiffs in error were not entitled to costs. Previous to the statute of the 12th of April, 1813, no costs were ever allowed a plaintiff in error, on the reversal of the judgment below. As it is an alteration of the common law rule, as to costs, it ought to he construed strictly, The statute says, that in cases of reversal, the plaintiff in error shall be entitled to costs. Reversal is only for errors in law. Here the judgment was revocetur, for an error in fact, and, therefore, n'ot within the words of the act. If it was a judgment of reversal, 
      there could be no further proceeding in the cause. But the judgment being revoked for an error of fact, dehors the record, the party will be allowed to proceed de nova, from the time when the error in fact began. There is no reason, therefore, for allowing costs in this case.
   Per Curiam.

The form of the entry of the judgment ought not to deprive the plaintiff in error of his costs. It is, substantially, a judgment of reversal; and, therefore, within the statute.

In Dewitt v. Post, (11 Johns. Rep. 460.) we decided, that the proceedings might be reversed in part. The whole cause is removed from the court below, and the record is here, so that we might award a venire de nova, returnable in this court. If so, we may direct the infant to plead de nova.

The costs, on reversal, must, therefore, be assessed according to the statute; and the defendant in error may enter a rule for the defendant below, Duncan, to appear and glead de nova to the declaration removed into this court.

Motion granted.  