By the Court,
Cowen, J.Schermerhorn was the admitted agent and acting partner of the defendants at Albany. He there did business for them and signed checks as agent, and also in the same form for another line in which he was sole proprietor. For both he called himself agent; and, looking at the checks in question, it was entirely ambiguous whether they were drawn for one line or the other ; whether they were due from the defendants or from Schermerhorn alone. I do not understand [ *415 ] Schermerhorn as saying that the *defendants consented to his doing the business for both lines in his name as agent; and if they had, I do not think it should preclude them from showing the truth as to what checks were drawn for them, and what on Schermerhom’s own account. The defendants offered to show that all the moneys were in fact obtained by the witness on account of himself. Certainly his testimony for the plaintiffs, though clear and positive, was not conclusive. He might bave;jbeen impeach - ed or contradicted. I see nothing in the case absolutely binding the defendants to pay all checks drawn by Schermerhorn as agent. It is said that J. V R. Schermerhorn, agent, was the name of their firm at Albany ; but it was also the name there of Schermerhorn’s own line. Which, according to the offer, in fact had the money ? If Schermerhorn drew on his own account and used the money, how can the defendants be made liable ? -Sup *415pose he had sworn that the money was obtained for himself and used for his own benefit, had the defendants done any act which estopped them ? Had they been the sole firm acting at Albany in the name of “ J. V. R. Schermerhorn, agent,” they would have been estopped ; but there were two distinct firms of that name whose business was conducted by the same man. I do not find it in the evidence, as the plaintiff’s counsel supposes, that the de- - fendants ever consented to a blending of the business of the two lines under one name, so as to make themselves liable as well for all the debts of Sehermerhorn’s line as of their own. At any rate, he does not testify that all the defendants were consulted and consented to such a form of business. It was in fact so done, but of his own head. The offer of the defendants was a strong one ; it was to show the defendants not indebted to the plaintiffs • that the checks were the witness Schermerhorn’s own.
It may be said that the pleas in abatement admitted the plaintiff’s claim. They certainly did; but not the amount of it. The defendants failing to sustain them by proof, as I think they did, the effect was the same as a judgment by default. Nominal damages were admitted, and these the plaintiffs were entitled to recover at all events. The *defend- [ *416 ] ants could not entirely defeat the plaintiffs; but might contest the whole or any part of the claim given in evidence, the same as if the general issue had been pleaded. Their only disadvantage was that they must finally submit to a verdict of nominal damages. This would be the effect of their unfounded pleas in abatement, not of the evidence in the cause. Waggener v. The Bells, 4 Monroe, 11. Haley v. Caller, 1 Alab. R. 63.
John Rice’s plea in abatement clearly failed. He pleaded promises made byt he defendants jointly with Schemerhorn only, whereas the real promissors were the defendants with Schermerhorn and two others, Clark and Woolsey. In pleading a non-joinder, it is perfectly -well settled that you must name all the promissors who should have been joined. If you can abate by pleading one and proving more, a.second suit may be abated in the same way, and so a third. You must give the names truly, so that the plaintiff may have a good writ or declaration the second time. He need not wait till the plea in abatement be tried, but may immediately enter a cassetur billa, and commence a new action against all the‘persons whose names are furnished. Tidd’s Pr. 626, 632, Am. ed. of 1807. Under our rule 96, upon a plea of non-joinder, the plaintiff may amend on terms, of course. It is entirely s ettled in England, that if the plaintiff take issue, though the defendant at the trial shew the promise to have been made jointly with the person he has named in his plea, yet if it appear that another or others not named by the plea as defendants were also joint contractors, the proof fails, and there must be a verdict for the plaintiff. 3 Chit. Pl. 899, note (A.) Am. ed. of *4161828. Per De Grey, C. J. in Abbott v. Smith, 2 Black. R. 951. Per Gibbs, C. J. in Godson v. Good, 2 Marsh. 302. Per Denison, J. in Pearce v. Davy, 1 Kenyon’s R. 366. The last case holds that all the joint contractors not on the record must be named in the plea, and positively sworn to be joint contractors by the party pleading ; not shown to be so merely by way of inference from circumstances. It is none the less important with us to adhere to the same practice. It enables the [ *417 ] plaintiff, by a single amendment under rule 96, *to perfect his writ or declaration, or both, accordingly as he may have commenced his suit by a capias or declaration.
In regard to Stephen Rice, the course of pleading was this : The plaintiffs declared against four persons, averring they were partners under the name, style and firm of the New-York & Geneva Line. He pleaded that the promises, if any, were made jointly with three others. The replication was that the defendants were members of a company by the name of the New-York <f* Geneva line, which should have been registered in the Albany clerk’s office ; and, not being so, were ousted of a right to plead in abatement, by the statute, Statutes of 1836, p. 58 2, ch. 385, § 1, 2. The substance, both of the declaration and the replication, was, I think, that the defendants were partners in contracting the debt. Suppose they had pleaded the general issue, and the proof had been that they had all jointly received the money under the name of the Penn Yan & Geneva line, instead of the firm mentioned in the plaintiff’s declaration ; surely that would have been no defence. The issue would be whether the defendants were jointly liable ; and whether their firm were called A. or B. would not vary the material fact. Now here, the plaintiffs have shown, in substance, that the de. fendants were members of an association, which, not being registered in the Albany clerk’s office, had no right to plead in abatement. Stephen Rice, in his rejoinder, says in substance, that he never was a member of such a company as the plaintiffs had described ; and it comes out in proof that he was. I think the name Neto-York Geneva line may bé considered as if stricken out of all the pleadings. The name was entirely impertinent, and foreign to the real question between the parties. That was merely whether they were a company within the statute, by one name or another, or no name at all. It is admitted they were, by the name of the Penn Yan & Geneva line.
Every book on evidence declares that the substance of the issue alone need be proved; and, in searching for that, the distinction between immaterial and impertinent averments, has been well understood and often acted on, ever since Bristow v. Wright, Doug. 665. Peppin v. Solomans, [ *418 ] *5 T. R. 496. Williamson v. Allison, 2 East, 446, 452. Wilson v. Codmans’s exr. 3 Cranch, 193. A declaration against *418partners is just as well, though it do not mention the defendants as partners at all. Mack v. Spencer, 4 Wend. 411. Wardell v. Pinney, 1 Wend. 217. And though it falsely allege that they became liable as acting in a certain name, it is no answer to say they did not act in such name. A declaration averred that John Lowe, trader, and surviving administrator of S. P., made his bond. The court said, if the description were not true, it might be rejected as surplusage. Clark v. Lowe, 15 Mass. Rep. 476. In" the replication here it was material to show a company; but be their name or firm what it might, they were equally liable, and equally bound to register their names, in order to avoid a suit against separate members. The particular name under which they did business, was material neither to their liability nor their obligation to become registered.
The Rices, therefore, clearly failed in sustaining their pleas in abatement; and the defendants were properly holden liable.
But they had a right to contest the amount of damages, by the proof offered. The learned judge, we think, erred in overruling the evidence.
Therefore, we direct a new trial, the costs to abide the event.