Richard v. Walton — 12 Johns. 434

Majority

p. 434

Richard & Finney against Walton.

Headnote

whereajudgit must bg. ad firmed or réversed in toto.

' So, wtyeretwo 3uéd0bywaiTant' ¿curt, IS1'» Mdy tbep juS aglfustjtoti™fejudgment be¡i¡g erroneous as to the .^defendant pear, was reversed,on certioraboth

w'the'defend-’ »dgmenhtd s‘™ whSstai,pbared! smwe.

IN ERROR, oil certiorari to- a justice’s court.,

The defendants below were sued by warrant in trespass, for . 4.. ‘ , , ■ . r - , t cutting timber: the'constable retUrtfea to ¿he warrant', matines 0_', ' ■, p * » e aanae Ms sérvéd agreeable to law; but only brought Bichardg befdre the'^ j'.tísficé,! no reason appearing why the other defendant. was not brought. Ricjiards pleaded, and demanded an adjourn* ment, but refusing to give security, it was denied, and the justice gave judgment againslt both defendants. ' ' ; ‘

The rule of affirming: in part, .and reversing int ' h .. ■ X if*. : , ,• ■ part, does not apply to cases of this kind; ( 8 Johns. Rep. 566 .) -be qotie where the judgments are distinct^ as ifi cases of damageSf and costs, in which the judgment may be /reversed as to one, and affirmed as to the otherj, but where the judgment is entire, there must be a total affirmance, or reversal. Thus,. at common law, in án action of trespass against three, if one die, pending the writ, and yet judgment be given against all three, the' whole judgment must be reversed, because it is entire, although the writ abated but against One.. . So, in trespass against several, if the judgment be erroneous, because one of the defendants was within age, and appeared by attorney, the judgment shall be reversed in toto. (Bac. Abr. Error. (M) and cases there cited.) In the case before us, the proceedings against Finney were, clearly erroneous: Mere a party is prosecuted ■ by war-».

p. 435

rant, the justice has no authority to proceed, unless the defendant appears in court. There is nothing in the return to warrant an inference that Richards was authorized to appear for Finney, even if that would be sufficient. The justice might possibly have been authorized, as the action ivas trespass, to treat the defendants as severing, and have given judgment against Richards j but as the judgment is against both, nnd entire, it must be re-> versed.

Judgment reversed.