REPORTS. Cases argued and decided in the Supreme Court of the Territory of Wisconsin at the July Term, A. D. 1842. [Reported by T. P. Burnett, Reporter for the Territory.] JAMES D. DOTY, impleaded with DAVID JONES and ALEXANDER J. IRWIN, Plff in Error. Error to Dane County. VS. MOSES M. STRONG, Def't in Error. A writ of error may be quashed, when it does not agree with the record of the case. All the persons against whom a judgment is given, must be named as plaintiffs in a writ of error to reverse the judgment. Although the proceeding of summons and severance is not familiar in American practice, the more easy and equally legitimate course, is to enter a rule against those who are named in the writ as plaintiffs and who have not appeared, either to appear and assign error, or suffer to be severed. Ar the November Term, 1841, of the Dane District Court, Strong obtained judgment, in an action of assumpsit, against Doty, Jones, and Irwin. To reverse the judgment, Doty alone, prosecuted this writ of error, and entered into a bond for a supersedeas in his own name, without joining his co-defendants in the original action. The defendant in error moved the court to quash the writ and dismiss the cause, because, "1st. The writ of error is prosecuted in the name of Doty alone, although the judgment which it is brought to reverse, is against the said Doty, Jones, and Irwin: and 2d. The bond for the supersedeas is informal and insufficient." In support of this motion, BURNETT and DUNN for the defendant in error, contended: That where a judgment is given against several, one only, cannot prosecute a writ of error to reverse it. If the writ is sued out, it must be in the names of all the defendants against whom the judgment was given. If each one was allowed his separate writ, they could bring up the case successively, although the judgment should be affirmed once or more; and as a writ for one would be a supersedeas for all, the practice would tend to vexation and delay. See 2 Brc. Abr. Title Error, B. page 461, and the authorities there cited. 2 Tidd's Prac. 1053, 1054. 3 Burr. 1789. Graham's Practice, 770, 771, 772. In such case, if the writ be brought by one or more of the defendants only, and not in the names of all, the court will quash it; 2 Tidd 1054. 2 T. R. 788. 3 Burr. 1789. 1 Wils. 88. The bond in this case is defective. It does not conform to the statute, nor does it correspond with the record of the cause, and a recovery could not be had upon it in case the judgment should be affirmed. JACKSON, for plaintiff in error: The writ is properly brought in the name of one only of the defendants below. He is the one who complains of the error, and for aught that appears, the others may be satisfied to let the judg ment rest. He has no power to compel them to join in the writ or to sign the bond, and if they neglect or refuse to do so, the defendant, Doty, cannot be deprived of his remedy. He is entitled to the writ in his own name as a matter of right. Chief Justice DUNN delivered the following opinion of the Court upon the motion. The defendant in error moved the court to dismiss the writ of error herein for two reasons: "Ist. The writ of error is prosecuted in the name of Doty alone, although the judgment which it is brought to reverse was against the said Doty, Jones, and Irwin. 2d. The bond for supersedeas is informal and insufficient." The record in this case from the District Court of Dane county, shows, that at the November term of 1841 of said court, a judgment was rendered in favor of the said defendant, Strong, against the said plaintiff, James D. Doty, Alexander J. Irwin, and David Jones. To reverse this judgment, Doty, plaintiff in error, and one the defendants against whom the said judgment was rendered, has prosecuted this writ of error separately from the other defendants in the judgment. The case, as it is now presented on the motion submitted, being thus correctly stated, the court will proceed to examine the merits of the motion to dismiss upon the grounds set forth. It is not only a rule that no person, not a party, can sue out a writ of error, but it is also a settled rule that it must be brought in the names of all the parties against whom the judgment is given: And notwithstanding the death of any of the parties, though the survivors must bring the writ, he must still be named and his death must be alledged. And this is the rule, both that the writ of error may agree with the record, and to prevent vexation; for if each party may bring a writ, they might do it successively, to the great prejudice and delay of the plaintiff, who, in the opinion of the ablest jurists, cannot sue out execution against any one where a writ of error is awarded, even on the application of the others. A writ of error which in this respect is erroneous, may Saun. 101. f. be quashed. Carth. 8. Ld. Ray. 71. When one of several defendants brings a writ of error in which the others are unwilling to join, he must do it in the name of all, and those who refuse to appear and assign errors, must be summoned and severed, and then the writ of error must be proceeded in by the rest only; and the defendant who prosecutes the writ, will not be compelled to proceed, until they have been summoned and severed. Saund. ubi sup. Thus the writ of error corresponds with the record; and morcover the other parties would be forever after barred of the writ; see Bac. Summons, H. So that both purposes are subserved by this course of proceeding. To this general rule there is this obvious exception, that if one of the defendants in an action of tort is acquitted, he need not be joined, because he cannot say that the judgment is to his damage; and moreover, for the reason that he can never vex the plaintiff with another writ of error. The suit, however, should be described in the writ according to the record, and thus both objects of the law herein will be obtained. Saund. ubi sup. In 6 Serg. & Rawle, in the case of Folterall vs. Floyd, this doctrine is fully recognized on full argument and reference to authoritics. Hacket vs. Horne, Carth. 7. Walter vs. Stokoe, 1 Ld. Ray. 71. Brewer vs. Turner, 1 Str. 233. ported in 1 Str. 606, and Ld. Ray. 1403. cided in Hacket vs. Horne is mentioned and acknowledged in the case of Knox vs. Costello, 3 Burr. 1789. Cooper vs. Ginger, re- The practice of summons and severance is not familiar to the American courts of error. The more easy and equally legitimate practice, would be to enter a rule against those persons named in the writ of error as plaintiffs and not appearing, either to appear |