
    Isaac Hathaway, by his Guardian, in Error, versus Joseph Clark 3d.
    
      Oct 22d.
    
    A plaintiff in error, after failing to prove an error in fact assigned, cannot assign another error in fact.
    At April term, 1826, of the Court of Common Pleas, Clark, as plaintiff, recovered a judgment against Hathaway. On this writ of error the judgment was alleged to be erroneous, first, because Hathaway was under guardianship as a person non compos and no notice of the suit was given to the guardian ; — secondly, because Hathaway was an idiot. The plaintiff in error having had leave, at a former term of this Court, to strike out the second error assigned, now moved to have the assignment of it restored, and that the defendant in error should be required to plead thereto.
    
      Eddy supported the motion.
    He said that a second writ of error could not be issued ; 2 Wms’s Saund. 101 a ; Burleigh v. Harris, 2 Str. 975 ; and that a writ of error is amendable. Sword-Blade Company v. Dempsey, 2 Str. 892. [Parker C.J. You have already amended.]
    
      W. Bay lies, contra.
    
    We objected that the plaintiff in error could not assign two errors in fact, whereupon he struck out one, and he failed to sustain the other. [5 Pick. 490.] 2 Tidd’s Pr. 1108 ; 2 Bac. Abr. 487, Error, K. If he cannot assign two errors at the same time, he cannot have the assignment of the second error restored.
    
      Oct. 25th
   Per Curiam.

The plaintiff in error has failed to prove the error on which he relied. He cannot re-assign another error, nor have one which has been struck out restored.

Judgment of C. C. P. affirmed.  