The opinion of the court was delivered by
Redeield, J.It would seem from the case of Corbett v. Barnes, Cro. Ch. 443, that, in audita querela, all the parties to the judgment should properly join, whenever the defect or irregularity, complained of, goes to the foundation of the judgment or affects the interest of all. In regard to writs of error, too, it is well settled that if one bring the writ, it must be done in the name of all the parties to the original judgment, and an opportunity must be given to all to join in assigning errors, but those who decline thus to join, upon proper summons, will be severed, and the writ proceed in the *79name and behalf of those who do join. Jaques v. Cesar, 2 Saund. R. 101, e. (n. 1.) See also Crumwell v. Andrews, Yelverton’s R. 4-7. Shepherd & Bailey v. Orchard, 6 Mod. 40. But in a case like the present, where the gist of the complaint goes only to one of the defendants, and the judgment is admitted to be good as to the others, we see no objection to the writ being brought in the name of him for whose benefit it is instituted.
But we think this action cannot be maintained. It is brought to vacate, as to this plaintiff, at least, a judgment of a court of record, or perhaps only to set aside the execution, and the only ground of the complaint is that the judgment was rendered against this plaintiff by default, he being an infant, without the appointment or the appearance of any guardian. This is no doubt good ground of writ of error, and as the judgment is joint it is said it will be reversed as to all. 2 Saund. R. 212 n. 4. It seems to be now settled that an infant executor shall join with his co-executors of full age, and may appear by attorney, which they may appoint for him, and that a defendant cannot take advantage of the appearance of an infant plaintiff by attorney, when judgment is in favor of the infant. Foxwist, et al. v. Tremaine, 2 Saund. 212. Bird v. Pegg, 5 B. & A. 418. But this qualification of the rule has not extended to the case of infant defendants. But no case can be found where, at the common law, a remedy has been afforded in such case by audita querela. The only case at all analogous to this, is where recognizances by statute staple and statute merchant, which were entered into by infants, have been set aside by this process, as being the only remedy which could afford relief. And in analogy to this, perhaps, by a long course of decisions in this court, judgments of justices of the peace have been for this reason set aside upon audita querela. Those cases at first proceeded, it it believed, upon some supposed grounds of urgent necessity ; and finally the precedents became so numerous that they could not well be disregarded unless for the sake of correcting some manifest wrong. The present case, however, stands upon wholly different grounds.— There are no precedents in favor of the plaintiff. He has an ample remedy by writ of error, and one far more appropriate to the purposes of justice, as in that way the error might be *80corrected without destroying the action. We do not, therefore, feel called upon to extend so desperate a remedy to such a case as the present. What is said in the declaration of the cause not being appealed by the plaintiff from the judgment of the justice, we do not think varies the case, for if appealed by attorney it would but be a ground of error, the same as appearing, or pleading by attorney, and it does not appear this case was not contract, in which the other defendants would have the right to appeal, and thus bring up the whole case even against the will of the plaintiff. So that in either event the case is made no stronger for the plaintiff.
Judgment reversed and judgment that the declaration is insufficient.
Note by Redfteld, J. — Since writing out my opinion for the reporter in this case, the case of Mason Hale v. Denison Denison, 15 Wendell, 64, has fallen in my way. It is there held that if one of two defendants, or joint debtors, against whom judgment is rendered, without assigning a guardian, ad litem, be an infant at the time, it cannot be assigned, as a ground of maintaining a writ of error, for error in fact. But in numerous English cases, of recent date, the general doctrine is held that, if an infant appear by attorney, or by prochein amy, it is error. Castlemain v. Mundy, 24 Eng. C. L. 30. 4 B. & Adolph. 90.