By the. Court,
Cowen, J.If the assignment of' errors was irregular as being variant' from the writ, it is now perhaps too late to raise the objection. The motion might have been made at the December motion term.' Several *622other like terms have intervened, and steps have been taken in the cause by the attorney for the defendant in error, with full knowledge of the supposed irregularity.
But the assignment was not irregular. The plaintiff in error had a right to prosecute the writ as he has done in his own right, naming all the defendants, for the purpose of identifying the record ; and on the return of the writ, to proceed alone by severance, pursuant to the 2 R. S. 491, 2d ed., § 7 to § 14 inclusive. Coming thus on his sole complaint and in his own name, he may, for aught I see, assign errors in the same form before severance. Indeed, section 7 supposes this to be so. It declares, that if the parties entitled to bring error be not all joined, the writ shall be quashed at at any time before joinder, unless one or more be allowed to proceed separately; and the motion to quash, by § 8 and 9, may be answered by showing that they have refused to join on being applied to, or that their consent could not be obtained by reason of their absence from the state. Here one (Benjamin Fenner) has refused, and two, David Rogers and Samuel D. Rogers, are absent, as appears by the affidavit of E. Fenner.
A rule must therefore be entered pursuant to section 10, directing Benj. Fenner to appear on the first day of the next August special term, and then join in the writ, or be forever precluded from bringing another writ of error. In the meantime, let all proceedings be stayed. § 9.
As to David and Samuel D. Rogers, the affidavit of E. Fenner is general, and perhaps ought not to conclude either them or the defendant in error. Therefore, let the latter shew cause on the same day of August term why the plaintiff in error should not be allowed to prosecute without them pursuant to § 8.
Rule accordingly.