24th of June. On the 28th of March the lessor of the *plaintiff ac*85] cepted rent for the quarter ending on the 25th. The repairs were not done pursuant to the order of Court; and the defendant was thereupon served with a declaration in the present action, entitled, "Thursday, 28th of June, in Trinity term, 2 W. 4," the demise being laid on the 27th under the statute 11 G. 4, and 1 W. 4, c. 70, s. 36, 37. The particulars of demand stated this action to be brought for breach of covenant in not repairing. A verdict having been found for the plaintiff,

Thesiger now moved for a new trial, on two grounds. First, no power of reentry for non-repair is given by the lease, without a three months' notice. Here notice was given previously to the first ejectment, but the landlord waived it by assenting to the order of Court, made at the Spring assizes, which enlarged the time for repairing, and in other respects introduced new terms, Doe dem. Morecraft v. Meux, 4 B. & C. 606. The acceptance of a quarter's rent afterwards was also a waiver. And no further notice having been given, it is the same with reference to this action, as if there had never been any. Secondly, if the notice of the 6th of January continued in force, the landlord became entitled to re-enter in the following April; and the statute 11 G. 4, and 1 W. 4, e. 70, s. 36, which authorizes the service of declaration in Hilary and Trinity vacations, requires it to be served within ten days after the right of entry acrues. The present ejectment, therefore, was improperly commenced.

*PARKE, J. I think there ought to be no rule. As to the first point, *86] the notice to repair was given on the 6th of January, 1832; and the right of re-entry, in default of repair, would have accrued in three months from that time. Before the expiration of the three months, an ejectment was brought; and the lessor of the plaintiff being unable to support that action, put an end to it by consenting to the order of Court made at the March assizes, 1832. It was the same as if the parties after the 6th of January, and before the expiration of the three months, had made an agreement between themselves, that the time for repairing should be extended to the 24th of June: it was merely a consent to postpone the time of completing the repair for the benefit of the defendant; and on his failing to comply with the terms, the lessor of the plaintiff might justly insist on his right of entry, and bring a new ejectment after the expiration of the enlarged time. The receipt of rent was only an admission that the defendant was tenant until the 25th of March, and could not operate as a waiver of the forfeiture. As to the objection founded on the statute 11 G. 4, and 1 W. 4, c. 70, s. 36, it seems to me that that could not be taken at nisi prius; and if it could, the answer is, that the landlord's right to re-enter, which is said not to have been enforced in proper time, was postponed by agreement of the parties.

TAUNTON, J. I am of the same opionion. The order of nisi prius did not supersede the notice, but only enlarged the time and suspended the right of re-entry.

*87] *PATTESON, J. The notice to repair may be connected with the agreement at nisi prius in the first ejectment. The other point is mere matter of irregularity. Rule refused.

CROSFIELD and Another, Assignees of BROSTER, v. Sir THOMAS STANLEY MASSEY STANLEY, Baronet. Nov. 5.

The statute 1 W. 4, c. 7, s. 7, exempting judgments on cognovit, and by default, confession, or nil dicit, in any action commenced adversely and without collusion, from the operation of s. 108, of the bankrupt act, 6 G. 4, c. 16, does not extend to judgments on warrant of attorney, though given without collusion or intention of fraudulent preference. And a sheriff having seized and sold goods on an execution issued upon such judgment,

and paying over the proceeds after notice of an act of bankruptcy committed by the defendant, is answerable to the assignees for money had and received.

ASSUMPSIT for money had and received by the defendant, late sheriff of the county of Chester, to the use of the plaintiffs as assignees of Broster. Plea the general issue. At the trial before Lord Lyndhurst, C. B., at the last Summer assizes for Chester, it appeared that Broster, in April, 1831, executed a warrant of attorney to one Stringer, to confess judgment for 9397., as an indemnity to Stringer for the payment of such moneys, costs, &c., as Stringer might have to pay by reason of having joined Broster in certain promissory notes. Stringer, having been afterwards obliged to pay money on the notes, signed judgment on the warrant of attorney on the 6th of February, 1832, and a fi. fa. was thereupon issued, under which a sheriff's officer took possession, and began to sell. On the 15th of February, during the sale, but when it was nearly over, notice was given to the sheriff's officer on behalf of Broster's creditors, that he had committed an act of bankruptcy, and that a docket was struck against him. The act of bankruptcy had in fact been committed on the 12th. The sheriff's officer finished the sale, and afterwards paid over the balance of proceeds to Stringer, on an indemnity. This action was brought to recover the amount *of proceeds. The jury, under the direction of the learned Judge, found a verdict for the plaintiffs.

[*88

Jones, Serjt. (pursuant to leave reserved) now moved for a rule to show cause why a nonsuit should not be entered. This payment by the sheriff was protected by the statute 1 W. 4, c. 7, s. 7.(a) By the bankrupt act, 6 G. 4, c. 16, s. 108, it is provided that no creditor suing out execution on any jugdment by default, confession, or nil dicit, shall avail himself of such execution to the prejudice of other fair creditors, but he shall be paid rateably with them. The act of 1 W. 4, c. 7, s. 7, reciting this enactment, provides that no judgment or execution on a cognovit actionem, signed after declaration filed or delivered, or judgment by default, confession, or nil dicit, in any action commenced adversely, and not by collusion for the purpose of fraudulent preference, shall be deemed within the former provision. It is true this act does not expressly mention warrants of attorney; but the object is to protect all judgments not obtained by collusion, or with a view to fraudulent preference, and a judgment like this [*89 comes within the meaning of the clause. Another point taken at the trial was, that the action did not lie for the produce of goods sold before the sheriff had notice of the bankruptcy. Notley v. Buck, 8 B. & C. 160, is no authority to the contrary, for there the sheriff was informed of the bankruptcy before he sold. Here, it is true, the sheriff had had no notice when he received the purchasemoney and paid it over; but he had sold the goods, and bound himself by that contract of sale to the purchasers, before any notice: and (if the recent decision in Balme v. Hutton, 2 Tyr. 17; 2 Cro. & Jer. 19, be correct) the seizure and sale, without notice of the bankruptcy, did not render him a wrong-doer.

PARKE, J. There is very little difficulty in this case, when the clauses of the two statutes are compared. The 1 W. 4, c. 7, s. 7, only alters the provision of

(a) 1 W. 4, c. 7, s. 7, “And whereas by an act passed, &c. (6 G. 4,) intituled An Act to amend the Laws relating to Bankrupts, it is provided that no creditor, though for a valuable consideration, who shall sue out execution upon any judgment obtained by default, confession, or nil dicit, shall avail himself of such execution to the prejudice of other fair creditors, but shall be paid rateable with such creditors. And whereas, by reason of such provision, plaintiffs have been and may be deterred from accepting a cognovit actionem, with stay of execution, whereby the expense of further proceedings in such action might have been and may be saved or diminished; for remedy thereof be it enacted, that no judgment signed or execution issued after the passing of this act on a cognovit actionem signed after declaration filed or delivered, or judgment by default, confession, or nihil dicit, according to the practice of the Court, in any action commenced adversely, and not by collusion for the purpose of fraudulent preference, shall be deemed or taken to be within the said provision of the said recited act."

the 6 G. 4, c. 16, s. 108, in the cases of a judgment or execution on a cognovit after declaration, or a judgment by default, confession, or nil dicit, in an action. commenced adversely, and not by collusion for the purpose of fraudulent preference. Now this was not an execution on judgment by cognovit after declaration, or judgment by default, confession, or nil dicit in any action commenced adversely, but upon a warrant of attorney. The case, therefore, is not within the statute 1 W. 4, c. 7. Then is it within section 108, of the bankrupt act? To take it out of that section, the endeavour must be to engraft upon the words there [*90 used, "any judgment obtained by default, confession, or nil *dicit;" the terms of the other act, "by collusion for the purpose of fraudulent preference;" but we cannot adopt that construction; the clause is general and applies to all cases. As to the other point, there is no occasion here to be embarrassed with the case of Balme v. Hutton :(a) because, in this instance, all the money was received and paid over by the sheriff after notice of the bankruptcy; and the action is for money had and received. I am therefore of opinion that there should be no rule.

TAUNTON, J., and PATTESON, J., concurred.

Rule refused,

JOHN CASTLEDINE and MATTHEW CASTLEDINE v. MUNDY.

Nov. 5.
(In Error.)

Error will lie to B. R. on a judgment of C. B. for error in fact.

A court of error will give judgment of reversal, if there be error in law apparent on the face of the record, though error in fact only be assigned.

THIS was a writ of error on a judgment of the Court of Common Pleas. Declaration stated that the defendants below after the making of the statute 8 Hen. 6, c. 9, on, &c., with force and arms, with a strong hand, and against the form of the statute in such case made and provided, entered a certain messuage, &c. of the plaintiff, and in a forcible manner put out, disseised, and dispossessed and expelled the plaintiff therefrom, and with a forcible manner, and with a strong hand, kept and continued the plaintiff therefrom for a long *space of time, to wit, from thence hitherto, &c., by means whereof the [*91 plaintiff lost and was deprived of the use of the said dwelling-house, to wit, at, &c. The second and third counts charged the defendants with breaking and entering the plaintiff's dwelling-house, &c., to plaintiff's damage of 500l. The defendants appeared in person, and suffered judgment by default. On inquiry before the sheriff, the jury found that the plaintiff had sustained damages on occasion of the premises, besides costs, to the amount of 1007.; and the judgment was, that the plaintiff do recover against the defendants the sum of 3007., being treble the amount of the damages found by the inquisition, and the sum of 1937. 188., being treble costs. Upon writ of error to this Court, the plaintiffs (the defendants below) assigned for error that Matthew Castledine appeared in the suit in his own proper person, although at the time of his said appearance, and also at the time of giving judgment, he was under the age of twenty-one years, to wit, of the age of seventeen years and no more, in which case the said Matthew ought to have been admitted to appear in the Court below, to defend the suit aforesaid by his guardian, and not in his own proper person; wherefore they prayed that the judgment might be revoked, annulled, and altogether held

(a) The judgment of the Court of Exchequer in this case, which was contrary to the recent decision of the Court of K. B. in Dillon v. Langley, 2 B. & Ad. 131, was reversed in the Exchequer Chamber, on error, during this term. Hutton v. Balme, 2 Tyr. 620;.

1 Cro. & M. 262.

VOL. XXIV.-4

for nothing, and that they might be restored to all things which they had lost by occasion of the judgment, &c. To this the defendant in error pleaded in nullo est erratum. The case was argued in Trinity term by

Platt for the plaintiffs in error. An infant defendant can only appear by guardian, even when he is sued as *co-executor with others, Frescobaldi v. Kinaston, 2 Str. 784, and in Tidd's Practice, 9th edit. 99, it is said, that [*92 common bail cannot be filed for him under the statute, though he be sued jointly with other defendants; and for this Bligh v. Minster, Trin. 28 G. 3, K. B., is cited. It may be said that this was a defective assignment of error in fact; but assuming that to be so, or that the matter assigned is no error, then, the defendant in error having pleaded in nullo est erratum, and that plea being in effect, a demurrer, the Court may look at the whole record, and pronounce that judg ment which, upon the whole, appears to be right: Le Bret v. Papillon, 4 East, 502. Now here, even assuming that the infancy of one defendant below cannot be insisted on as a ground of error, still the judgment is erroneous, because general damages are assessed on all the counts, and it is therefore, impossible to say what portion is to be ascribed to the first count, on which alone the plaintiff is entitled to recover treble costs and damages.

[*93

Fynes Clinton, contrà. The assignment of errors itself is bad, inasmuch as it concludes with a prayer that judgment may be reversed, whereas it ought to have concluded with a verification: King v. Gosper and Shire, Yelv. 58. And the plaintiffs in error having assigned an error in fact, viz., that Matthew Castledine was within age, and had not appeared by guardian but in his own proper person, could not afterwards also assign error in law; and, if so, they must not now be permitted to do that indirectly which they could not do directly. They cannot, in this state of the proceedings, be in a better situation than they would have *been if they had offered to verify the fact alleged, and the parties had pleaded to issue; and then they could not have assigned as error in law that general damages were assessed on all the counts. This case differs from Frescobaldi v. Kinaston, 2 Str. 784: there the assignment of error was that the defendant below had appeared by attorney. Here he appears in his own proper person. [PARKE, J. It is said in an Anonymous Case, in Sayer's Rep. 51, that an infant cannot bring a penal action, because he cannot appear in person or by attorney; and in Co. Litt. 135, b, that when an idiot doth sue or defend, he shall not appear by guardian, or prochein amy, or attorney, but he must be ever in person; but an infant or a minor shall sue by prochein amy and defend by guardian.] The fact of one of the defendants being an infant, and having appeared by guardian, is not a ground for reversing the judgment altogether. PARKE, J In Bird v. Orms, Cro. Jac. 289, an entire judgment against two in trespass was reversed, one of them having appeared by attorney instead of by guardian. So in King v. Marlborough and Craker, Cro. Jac. 303, in ejectment, the error assigned was that Craker, one of the defendants, at the time of the judgment was within age, and appeared by attorney where it ought to have been by his guardian, the judgment being upon verdict, and it was thereupon demurred; for it was said that this was not error, but quoad him within age." But it was decided, the damages and costs being entire, that the judgment was reversable for both.] There the judgment was after verdict; here it was by default. In both cases the action was founded in tort, and it was not then settled, as it has been since *in Merryweather v. Nixan, 8 T. R. 186, that there is no contribution between tort-feasors. [Lord TENTER[ *94 DEN, C. J. Will a writ of error for a matter in fact lie in this Court on a judgement of C. B? In Com. Dig. Pleader, 3 B. 1, it is said that error may be brought in the same Court where the judgment was given, for error in fact, as that the defendant appeared by attorney, being an infant; and then it is added, for error in fact it must be in the same Court, and 1 Sid. 208, is cited.] Platt in reply. In Frescobaldi v. Kinaston, Str. 784, and Bird v. Orms,

Cro. Jac. 289, matters of fact were assigned for error in this Court upon a judgment in C. B. Cur. adv. vult.

PARKE, J. now delivered the judgment of the Court.

This was a writ of error from the judgment of the Court of Common Pleas in an action of trespass for forcible entry on the statute 8 Hen. 6, c. 9. The declaration contained three counts; one on the statute, and two for trespasses at common law. The defendants appeared in person and suffered judgment by default, and general damages were assessed on all the counts, for the treble amount of which, and treble costs, final judgment was given. The assignment of errors was as follows: "that the said Matthew appeared in the suit aforesaid in his own proper person, nevertheless the said Matthew at the time of his said appearance, and also at the time of giving the judgment aforesaid, was under the age of twenty-one. years, to wit, of the age of seventeen years, and no more; in which case the said Matthew ought to have been admitted to appear in the court afore*95] said to defend the aforesaid suit by his guardian, and not in his own proper person; therefore in that there is manifest error, wherefore they pray that the judgment aforesaid may be revoked, annulled, and altogether held for nothing, and that they may be restored to all things which they have lost by occasion of the judgment aforesaid," &c. To this the defendant in error pleaded in nullo est erratum.

An assignment of error in fact ought to conclude with an "hoc paratus est verificare;" and the case of King v. Gosper and Shire, Yelv. 58, (Walker v. Stokoe, Carth. 367; Sheepshanks v. Lucas, 1 Burr. 410,) is in point, that such an assignment of error as this, without a verification, is bad; and if there be no other error on the record, the judgment ought to be affirmed. But in this case the judgment is clearly erroneous, for general damages are assessed on all the counts, and it is, therefore, impossible to say what portion is to be ascribed to the first count, on which alone the damages and costs could by law be trebled; and yet judgment is given for the treble amount of the whole. The only question, then, is, whether it is competent for the plaintiff in error to avail him self of this objection; or, more properly, whether the Court is bound, ex efficio, to take notice of it, there being no assignment of error in law.

a.

The general rule is, that the Court, ex officio, must give the proper judgment according to the right appearing upon the whole record, Le Bret v. Papillon, 4 East, 502; Charnley v. Winstanley, 5 East, 271; Fraunces's case, 8 Coke, 93, *96] In a case cited in Dive v. Manningham, Plowden, 66, on not guilty by one found against him, and a plea in bar by another found for him, it is said, "inasmuch as it appears to the judges by the record, that the plaintiff had no title, they, ex officio, ought to give judgment against the plaintiff;" and afterwards it is said, "So always, if it appear to the Court that the plaintiff has no title, he shall not have judgment, although the defendant admits his title: and though the defendant by his bad conclusion has concluded himself of his advantage, the plaintiff shall be barred by the Court ex officio, if so be it appears he has no title."

And there is no difference, in this respect, between the office of a court of error, and of a court of original jurisdiction, 4 East, 502. Thus, in Bishop's case, 5 Coke, 376, the Court agreed, that where an original writ was removed by certiorari, and varied from the declaration, the judgment should be reversed, although that error was not assigned.

In Carleton v. Mortagh, 6 Mod. 208, Lord HOLT says that, "if a bad plea in bar be pleaded to a bad declaration, or to a bad assignment of error, it is idle; and the Court shall take no notice of the insufficiency of it, but shall judge on the record."

The result of these authorities is, that the Court ought to give judgment of reversal, if there be error in law; notwithstanding no error in law is assigned: and though it be true, that a plaintiff in error will thus have the same advantage indirectly, as if error in fact and in law were both assigned (which cannot