
    Catharine Wilkins and others v. John Philips.
    Where one party to a writ of error is within the saving clause of the statute of limitation, the case is saved to all the parties.
    This was a writ of error to a decree in chancery pronounced by the court of common pleas of Delaware county, on March 10,1818. The writ was issued February 17, 1826. The plaintiffs in error were the same persons against whom the decree was pronounced, as heirs at law of John Wilkins,, deceased, and were numerous. The defendant in error pleaded three several pleas in bar, which were in substance the same, and presented the fact that more than five years had elapsed between the rendition of the decree and the emanation of the writ of error. To each of these pleas, the plaintiffs in error replied, that Catharine Wilkins, one of the plaintiffs in error, at the time of pronouncing the decree, was an infant, and remained an infant under *twenty-ono years of' age until and after the time of suing the writ of error. To these replications, the defendant in error demurred, and the plaintiffs joined in demurrer. The question upon the demurrer was adjourned here for decision, from Delaware county.
    O. Parish, in support of the demurrer,
    cited 4 Dun. & East, 516; 7 Cranch, 156, and argued that these cases were decisive of the point in controversy.
    Atkinson and Leonard, for plaintiffs in error,
    cited 4 Day, 265, 310, 465; 2 Bibb, 371; Hardin, 365; Coke Litt. 163, B, and insisted that the principle of the cases they relied upon, was entirely distinct from that of the cases cited by the defendant’s counsel. They cited also 2 Wheat. 316.
   By the Court :

The case of Marstiller and others v. McLean, 7 Wheaton, 156, was decided upon the authority of the case of Perry and others v. Jackson and others, 4 Term, 516. In the latter case, Lord Kenyon asserts, that it is the first time the question had been brought up for decision, whether, where the saving clause of the statute of limitations protected only a part of those joined in the action, all the plaintiffs could claim its protection. It is decided against the protection, but upon grounds by no means satisfactory to us. The case was one of partnership, which, we think, was sufficient, ot itself, to have warranted the decision made. This is in part relied upon, and the decisjon is in part put upon the ground of the grammatical construction of the statute. The Supreme Court of the United States ground themselves upon this authority. Highly as we respect the opinions of. this tribunal, we can not adopt them, in the construction of our own statutes, where they are at a variance with our own judgments. We consider the reasoning of the courts of Connecticut and Kentucky, cited by the other side, as'more consonant to the general advancement of justice. It is our opinion that if any one of the parties, who sue a writ of error, is within the proviso that takes the case out of the statute of limitations, the case is saved for all the parties. The demurrer to the replication is overruled, and the cause remanded for further proceedings.  