
    Cole v. Pennell, &c.
    December, 1823.
    Office Judgment — Joint Defendantst— Infant—Writ of Error Coram Vobis. — Where an office judgment is obtained, in an action on a promissory note, against two defendants, one of whom is an infant at the time of confirming the judgment; on a writ of error, coram vobis, being brought, the proceedings should be set aside, as far as the- declaration, or other good pleading. So decided by two Judges, in a Court consisting of three.
    Same — Same—Same—Same.—The judgment in such case ought to be revoked as to both defendants, and not as to one only.
    Same — Same—Same—Same.—In such case, the proceedings ought not to be reversed, in toto, but remanded to the rules, to be proceeded in from the last good step.
    This was an appeal from the Superior Court of Law of Harrison county.
    Cole brought an action of debt against Pennell and Wamsley, merchants, and joint dealers, trading under the firm of E. A. Pennell & Co. The declaration was filed at the November rules, 1817. The defendants being arrested, and not appearing, a conditional judgment was entered at the rules. In December following, the defendants still failing to appear, the conditional judgment was confirmed against the defendants, and their appearance bail. On the 18th of April following, that being the last day of the term of the said Superior Court, the judgment aforesaid became final, according to the act of Assembly.
    On the 4th of June following, the defendants, Pennell, Wamsley, and Hei-slcill, their appearance bail, having *sued out a writ of error, coram vobis, the Superior Court of the said county awarded a supersedeas, upon bond and security being given for the effectual prosecution of the said writ of error.
    An assignment of errors accompanied the application for a supersedeas, which stated, that the said Pennell, “at the time of the commencement of the said suit, and at the time of making and entering the common order, for want of an appearance therein, and at the time of the entry of the said judgment aforesaid, was under the age of twenty-one years, to wit) of the age of twenty years, and no more, to wit: at the county of Harrison, aforesaid, in which case, the said Fielding” (meaning Fielding A. Pennell,) “ought to have been admitted to appear and defend the said suit by his guardian;” and this they are ready to verify. The assignment concludes with praying, that the judgment might be revoked, annulled, and altogether held for nothing.
    With the assignment of errors, the affidavits of Pennell, the defendant, and his father, were filed, going to prove, that the said Pennell was born on the 9th of January» 1197.
    The bond and security were given, according to the terms of the order awarding the supersedeas.
    Cole appeared by his attorney,_ and craved oyer of the record mentioned in the writ of error, and pleaded, that the judgment in his favor ought not to be reversed or annulled, because, after taking the judgment aforesaid, at rules, in the Clerk’s office, against the said Pennell, Wamsley, and PLeiskill, their appearance bail, and before the next term of the Superior Court, held on the 18th of April, 1818, to wit: on the 9th of January, of the same year, the said Pennell became of full age.
    To this plea the plaintiff in error demurred generally, and the defendants joined.
    The Court sustained the demurrer, over-ruled the plea, and reversed and annulled the judgment in favor of Cole, ^obtained at the rules, and which af-terwards became final by the rising of the Court at the spring term, 1818.
    Cole appealed.
    Nicholas, for the appellant,
    made four objections to the judgment of the Superior Court:
    1. The writ of error coram vobis ought to have been applied for to the Court it self, and not awarded by the Clerk, and this fault being in the foundation of the proceedings, vitiates the whole.
    3. The plaintiff in error in the Inferior Court, improperly alledges that he was an infant, at the time when the judgment was obtained against him. The judgment was never complete, until after the term. Digges’s exr. v. Dunn’s exr., 1 Munf. 56; and then, it is admitted by the demurrer, the party had attained full age.
    3. Writs of error coram vobis, on the ground of infancy, do ,not lie on behalf of an adult, as the party was, when he applied in this case. It is fatal for an infant lo bring error to reverse a judgment, by attorney and not by guardian. 3 Bac. Abr. 616, tit. Infancy; Co. Ent. 289; Cro. Ja. 35. The party in this case had a day in Court, at which he might have pleaded infancy.
    4. The judgment should not have been reversed in favor of Pennell, because it was a joint judgment against a mercantile firm, and would bind the social effects, though one of the partners might have been an infant during part of the partnership, but admitted to be of full age when the judgment was obtained.
    Deigh, for the appellee.
    
      It sufficiently appears from the record, that the writ of error was regularly awarded, or at least allowed. The bond recites, that the writ had been awarded by a Judge of the General Court; and should that point be deemed *material, there is little doubt that a cer-tiorari would bring up a record, which would shew the award in form. Besides, it is stated, that the writ was produced in Court, by the plaintiffs in error, and that the Court thereupon superseded further proceedings on the judgment complained of; which, if not a formal award, is clearly an allowance of the writ; and the defendant in error having appeared and pleaded cannot avail himself of it.
    But, writs of error of this kind may be prosecuted without being awarded by the Court, or a Judge in vacation. At common law, all writs of error in civil cases, as well those from a Superior to an Inferior Court, to correct errors in law, as writs of error coram vobis to correct mistakes or errors in fact or in process, were suable of common right, ex debito justitiae. Queen v. Paty, 2 Salk. 504; 2 Wms. Saunders, 101, a, note. The provisions in our statutes do not relate to writs of error coram vobis. 1 Rev. Code, chap. 69, § 55, 6, 7, 8, 9; chap. 64, §11.
    The writ of error coram vobis was clearly the proper remedy in this case. 2 Wms. Saunders, 101, a, note; Gordon v. Frazer, 2 Wash. 130. That a judgment against an infant is error, there can be no doubt. 3 Bac. Abr. Infant, K. 618.
    But, it is said, that this is not a judgment against an infant; that there was no judgment, till the conditional judgment, entered at the rules, had been confirmed in term; and that then, the infant had attained to his full age. On this single point, the plea of the defendant in error rests the case.
    But, the whole proceedings at rules were erroneous, and should have been set aside, instead of being confirmed at the ensuing term. If the office-judgment was irregular and nugatory, there was nothing to be confirmed.
    Where an infant defendant makes default, the plaintiff ought to apply to the Court to assign him a guardian ad litem; and he cannot take any available step till that be *done. 2 Wms. Saunders, 117, f. n. :1; 3 Bac. Abr. Infant, K. 617; 9 Vin. Error I, pi. 13, p. 488.
    The writ of error was rightly prosecuted by attorney, the infant having then attained to full age. 3 Bac. Abr. Infant, K. 616.
    Judgment being reversed for error as to the infant, was properly reversed as to all the defendants. 2 Wms. Saund. 212, a. n. 4; Ruffin v. Call, 2 Wash. 181.
    A writ of error is a supersedeas from the date when allowed, and bail put in, or (according to our practice,) bond given. 3 Bac. Abr. Error H. 477.
    December 16.
    
      
      Office Judgment. — See monographic note on "Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
      Joint Contract — Action on — Judgment.—It is a rule of the common law, that upon a joint contract the action must be against all the joint contractors, and, as a general rule, the judgment must be against all or none of them. .But that is not a universal rule. Where a defendant in such an action pleads matter which goes to his personal discharge, such as bankruptcy, infancy, or any matter that does not go to the action of the writ; or pleads or gives in evidence a matter which is a bar to the action as against him only, and of which the others could not take advantage, the judgment maybe given for such defendant and against the rest. Moffett v. Bickle. 21 Gratt. 281, citing principal case. To the same effect, the principal case is cited in Choen v. Guthrie, 15 W. Va. 104. The principal case is also cited in Wamsley v. Lindemberger, 2 Rand. 482: Step toe v. Harvey, 7 Leigh 536; Steptoe v. Read, 19 Gratt. 9: Campbell v. Hughes, 12 W. Va. 211.
    
   The Judges delivered their opinions.

JUDGE GREEN.

Tt has frequently been determined here, that a judgment by default in the office, for want of an appearance, if founded upon erroneous proceedings at the rules, is erroneous; and that such error is not cured by the statute of Jeofails; but, in such cases, if the writ be good, the erroneous proceedings are only set aside, and the cause again sent to the rules, to be there proceeded in. An appearance will cure many errors; but, if the party, although he might have appeared, either at rules or in Court, to set aside the office-judgment, fail to do so, his default in not appearing does not cure any error in the proceedings.

In the case at bar, one of the appellees being an infant, undefended when thé rules and judgment were taken against him in the office, although adult before the term of the Court at which that judgment might have been set aside, his failure to appear did not cure the error, if any, in the proceedings in the office. Those proceedings were eironeous. No rule could be taken against him, until a guardian was appointed to defend him, or he attained his *age; and, if no one on his behalf applied to the Court to appoint one, -the plaintiff was bound, at his peril, if he had continued an infant, to do so.

Two inconveniences would arise out of this rule to the plaintiff; but, they are such as are unavoidable, without abandoning the rule of law, that an infant cannot be prejudiced by any judicial proceeding, unless he be defended by guardian; a rule, without which, infants, incapable of protecting themselves, might be utterly ruined, under colour of judicial proceedings. One of those inconveniences is, that the plaintiff could not proceed a step in the cause, beyond the filing of his declaration, until the infant attained his age, or the Court sat, so as to enable him or some other to appoint a guardian ad litem. The consequence of which is, that he must continue the cause at rules, without taking any rule in the mean time. The other is, that if the infant be held to bail, and will not or cannot give special bail, as he cannot appear without bail, unless with the plaintiff’s consent, the latter must be content to continue the cause at rules, until the infant attains his age, or to consent to his appearing without bail, which would be left to the election of the plaintiff.

The failure of the infant to appear after he was adult, does not cure the errors at the rules; and, the judgment, being founded on those erroneous rules, is, therefore, erroneous. Moreover, the rules and judgment being joint, and erroneous as to one, they were erroneous in toto, and ought to have been revoked. But, these errors not extending to the writ or declaration, the Court went too far in depriving the party of the benefit of his writ and declaration, which were good. For, if the infant had pleaded infancy, and it had been found for him, judgment might still have been given against the adult defendant; Hartrup v. Thompson, 5 Johns. Rep. 160; or, the plaintiff might have replied necessaries, though probably without effect; or, the infant may have confirmed the contract since he came of age. The plaintiff could not have had *the benefit of such replications upon the writ of error, and should not be precluded from availing himself of them, if the facts exist. The judgment should have been revoked, and all the proceedings at rules, subsequent to. the filing of the declaration, set aside; and the cause sent to the rules, to be further proceeded in. The infant now being adult, must give special bail, and plead, oT judgment may properly be entered against him, by default for want of appearance, or by nil dicit, as the case may be.

JUDGE COALTER.

I have not been able to satisfy myself, whether the plea in this case was a bar to the writ of error, or not.

The other Judges, however, being of opinion that it is not, I will merely state mjr doubts, in order, that if a similar case should ever come before the Court again, an opportunity may be afforded for further enquiry.

The appellee, Pennell, who has brought this writ of error on the ground of his infancy, was the principal partner, it would seem, in a store, contracted this debt in Philadelphia for goods, and executed the note of the firm. Suit is brought on this note in the Superior Court of Harrison county, returnable to the November rules, 1817, and appearance bail given by the defendants. There being no appearance, an office-judgment was then taken, which at December rules was confirmed. It appears, that on the 9th of January following, the plaintiff in error arrived at full age. The cause stood as an office-judgment at the April term following, and not being set aside, is, by the law, to be considered as a judgment of the last day of that term, and would be so stated in any exemplification of the record, in the same manner as if actually entered in the order book of that day, and signed by the Judge. At this term, the party was of age. Generally, a plea to a writ of error of this kind, that the plaintiff in error ^was of age at the time of the judgment, is a good bar to the writ. 2 Lili. Entr. 491, S31, 270.

Suppose he had pleaded at the rules by attorney, and this plea had been tried at the April term. Had he been then an infant, this would have been error; but; I believe, it would not in this case, he being then of age; and that a plea to the writ, that he was then of age, would have been good.

In an' action against a defendant who is an infant, the plaintiff may declare as against another person, and it is not necessary to declare against him as an infant, and charge that the goods were necessaries. 2 Morg. Vade mecum, 443; 5 Co-myn’s Dig. 173. The suit then was well brought without naming him as an infant, if that had been known. April term was the first time at which the plaintiff could have applied for a guardian to be named; but, then the defendant was of age. What was the plaintiff then to do? Was he to take an office-judgment at November and December against the other defendant, and suspend proceedings against the infant until January rules, (for they were on the 19th, and he was of age on the 9th,) and then take a judgment against him, and confirm it at February rules? Had he done this, I apprehend there would have been no -foundation for the writ of error. He, however, takes au office-judgment against both, before the infant came of age.

Suppose he had been under age at April term, and the plaintiff had then moved to have a guardian named, but the infant failed to give appearance bail, without which, I apprehend, the guardian could not enter an appearance and defend, what could the Court do? All that could have been done in that case, it appears to me, would have been, to set aside the office-judgment against him, and send the cause to the rules, that he might give bail, and appear there. But, could even this be done, unless special bail was first given, so as to enable the guardian to appear and make the motion? I am not prepared to say, ''“that an infant is not to give bail. lie may have contracted a debt for necessaries. He may, on the eve of coming of age, have committed an outrageous 'assault, and may also be on the eve of Hying the country, and bail may be necessary.

Bui, at the office-judgment Court he was an adult, and at least stood in no better situation than if he had been an infant, and a guardian had then been ’assigned. Had he then appeared in Court, and moved to send the cause to the rules without bail, ought the Court to have done so? Had he given bail, and set aside the office-judgment, then the errors, if any, at the rules, would have been cured: 3 Wils. 50; and the most he could have complained of, would have been, that he ought to have an opportunity at rales, to plead in abatement. The Court might have sent it back for that purpose, or perhaps permitted such plea in Court, under the circumstances.

These are some of the grounds, on which I doubt whether the plea in this case was not a bar to the writ of error.

The other Judges, however, being of opinion that it was not, still I think that the judgment on the writ of error is erroneous. The writ and declaration were good, though the proceedings in the office against the infant were not. The course of the Court then, is, to reverse the first error. The judgment and proceedings, then, ought to have been reversed to the declaration, and the cause remanded to the rales, for futher proceedings.

JUDGE BROOKE.

The objection, that the writ of error in this case was issued by the Clerk, and not upon motion in Court, is obviated by the facts in the record. The order of the Court, superseding the judgment sought to be reversed, is made on the day of the date of the writ; and the bond recites, that the writ issued by the order of a Judge of the General Court. Tn the absence of these facts, the objection *comes too late after oyer of the writ of error, atul a plea to the. assignment of errors. in pursuance of the writ. The judgment on these proceedings, J think, is also correct. The coming of age of the appel-lee, Pennell, since the common order, can give no new aspect to the case. No future pleadings can avail the appellant. The infancy of the appellee being admitted by his plea to the assignment, of errors, and adjudged upon demurrer, cannot again be put iu issue in any proceedings at rules, nor would it be regular to send the cause hack to rules, for a plea that could not be negatived by the plaintiff. I am, therefore, of opinion, that the judgment ought to he affirmed.

Judgment and proceedings reversed to the declaration, and the cause remanded to the rules, for further proceedings. 
      
      JunGi! Cabjejuu, absent.
     