
    Benjamin S. Blanchard, Jonathan Coolidge, and others v. Charles Gregory.
    In trespass de bonis, etc., and judgment against all the defendants, one being an infant, the judgment being an entirety, is erroneous.
    A plea of release of error by the infant, after judgment, and after he comes of age, is bad. . •
    This is a writ of error to the Supreme Court of Geauga county.
    *The error assigned is an error in fact. It appears from the record that, at the August term, 1843, of the Supreme Court in Geauga county, Gregory obtained a judgment, in an action of trespass de bonis, etc., against Blanchard, Coolidge, and others, for $2,475.
    The error assigned is, that Blanchard, one of the defendants, at the time of the date of process issued against him, was a minor ; that process was never personally served upon him; that he had no guardian ad litem appointed to defend for him ; that he never appeared and defended by himself or attorney, but made default; and that judgment was rendered against him by default.
    To this, the defendant in error interposed a plea that, after the rendition of the judgment in the Supreme Court, and after suing out the writ of error, Blanchard, in consideration of fifty dollars, received of Gregory, released all error in the prosecution of the original suit, and in the rendition 'of the judgment.
    To this plea the plaintiffs in error demurred, and the question of the sufficiency of this plea was reserved for decision in this court.
    Perkins & Osborn, for the plaintiffs:
    Believing the questions involved in this case to have been settled by many very respectable authorities, wo only adduce them, and will not trouble the court with a formal argument.
    If several defendants appear by attorney, and one is an infant, it is an error, and the judgment shall be reversed against all. Com. Dig., tit. Plead. 262; 2 Croke, 287; 1 Ral. 776; 2 Croke, 303; Al. 74; 1 Lov. 294; 5 Mad. 209; Easton v. Calendar, 11 Wend. 90; Richard et al. v. Walton, 12 Johns. 434.
    There are three analogous cases in our own reports, deciding that, where all are obliged to join in a suit, the privilege of one extends to all. 3 Ohio, 49; 10 Ohio, 17; 12 Ohio, 359.
    *If these authorities are evidence of what the law is, it follows that the release of one can not affect the rights or remedies of others, and so are the English authorities. “A release by one of the defendants is no plea against the others.” Com. Dig., title Pleader, 3 B. 19; 3 Mod. 109, 135; 6 Coke, 256; Cro. Eliz. 648, 649; S. C., Cro. Jas. 116, 117; 2 Saund. 191, u., v.
    The only case we have found in opposition to these authorities is in Kirby’s reports, and in that it is admitted that all the English authorities are the other way. It is worthy of note, too, that the opinion of the court is given by the reporter.
    E. Wade, and Hitchcock & Wilder, for the defendant:
    We contend, first, that there is no error in the judgment and proceedings, and second, that if there be, the release of errors is a bar to the further maintenance of the writ of error.
    1. The errors assigned are not valid, and the question of the sufficiency of the assignment can be well raised under this demurrer. The assignment of errors is in the nature of the declaration, and on demurrer to the plea, the court will pass upon the sufficiency of all the pleadings. 2 Tidd’s Pr. 1107, 1116, 1117, 1720 ; Graham’s Pr. 787-789; 2 Paine & Durr’s Pr. 472, 478; 3 Bac. Abr. 216, 225; 24 Eng. Com. L. 30-33; 2 Sol. Pr. 384, 385; 3 Thos. Coke Lit., 1 Amer. ed. 457, at top; Coke Lit. 288 C ; 5 Com. Dig., title Pleader, (5 Amer.) 721; 1 Salk. 268; Arch. Pr. 256.
    2. The assignment alleges that there was no appearance by Blanchard the minor. This contradicts the record, and the plaint-' iff in error can not assign for error matters contrary to the record. 2 Sel. Pr. 382-385; Cro. Jac. 459, ed. 4; 9 Mass. 532; Yelv. 33 ; 2 Bac. Abr. Error K, 3; Cro. Car. 53; 2 Ld. Raym’d, 1415.
    By our practice, under our statute, the defendant is in court, and his appearance perfected, when the sheriff returns “ levied,” ^though we admit, at common law, it was different. 2 Sel. P. 91; Steph. Pl. Appendix, 22, n. 13; 3 Black. Com. 281, 291. Such return was made in this case.
    See also, as to -the rights and disabilities of infants, and the mode of practice when they aro parties to a suit. 3 Bac. Abr., Infancy and Age, K. 147-149; Cro. Jac. 464; Cro. Car. 307; 1 Mass. 475 ; 3 Thos. Coke Lit., 1 Amer. ed., 605, 606; Vaughn’s case, 5 Coke, 476; Moor, 665; Palmer, 229; Cro. Jac. 580; 1 Bulst., 24; 1 Wend. 165.
    This assignment of error is also bad, because it does not allege that the disability existed at the time the judgment was rendered. Cro. Jac. 303; Cro. Eliz. 569; 4 Barn. & Adol. 490; 24 Eng. Com. L. 30; Arch. Forms, 340: 1 Mass. 479; 3 Saund. 332.
    But, 3, this is an error, if it be one, which can be waived by an infant, on arriving at majority, as well as in other cases. We claim that Blanchard has done so, and infancy being a personal privilege, that irregularity being waived in him, his co-parties can not take advantage of it. Ketsey’s case, Cro. Jac. 320; 1 Thos. Coke Lit. 205, top paging, Amer. ed. 1; Coke Lit. 51, C; 2 Johns. 279; 14 Ib. 417; 1 Pick. 500.
    II. On the second point we contend that, if the court shall be of the opinion that the matters assigned for error are sufficient to reverse the judgment, still the release of Blanchard is a bar to the further maintenance of this suit. The error was committed against him, and he alone is prejudiced. Wilford et al. v. Grant, Kirby, 114.
    All the English cases on this subject, which decide that when the judgment is void as to one, it is void as to all the defendants, and that one can not release the errors as to the other, proceed upon the ground that “ it is not reason that the act of one should prejudice his companions.” But here it was no prejudice to the others that judgment was rendered against Blanchard. 11 Blackf. 139; '7 Ohio, 122, pt. 2; 5 Ohio, 169.
    *But, should the court be against us on all these points, it will reverse the judgment, but will proceed to render such judgment as the court below should have rendered. That is, it will render judgment against the residue of the defendants below. This would be doing justice, and we think in accordance with law and correct practice. 5 Port. 166; 11 Mass. 262, 266 ; Graham’s Prac. 793; 11 Johns. 241; 4 Wend. 95.
   Wood, C. J.

This is a writ of error to the Supreme Court of Geauga county. The error assigned is, in fact, infancy of Blanchard, one of the defendants. To this assignment, the plea of a release of error, since the judgment, by Blanchard, and since he became of age. To this plea the plaintiff in error demurred, and the principal question in the case is upon the sufficiency of this plea. The action was in trespass for personal goods and chattels, and against several defendants now plaintiffs in error.

We hold that the judgment being an entirety, if it was erroneous as to Blanchard, it was likewise erroneous as to all the other defendants against whom judgment was rendered; and that the release of Blanchard is inoperative to bar the writ of error. The demurrer is therefore sustained, and the judgment reversed, and the case remanded;

Hitchcock, J., having been of counsel for the plaintiffs, did not sit in this case.  