The record shews a writ issued against Charles Wheeler, Jordan Wheeler, and Thomas Wheeler, surviving copartners of Charles Wheeler & Co., at the suit of hallará.
The action is assumpsit, on a promissory note, which is set out in the endorsement on the writ. Process was executed on all tlic defendants, except Charles Wheeler. At the trial term, the case was entitled, as against Charles Wheeler & Co., when the parties appeared by attorney, and. Bullard obtained leave to discontinue his suit against Thomas Wheeler, for the cause that he was not a partner of the said, firm; but no judgment of discontinuance was entered, and the suit was continued, as on the affidavit of the plaintiff. At the ensuing term, the case was entitled in the same manner, was tried by a jury, who returned a verdict for the defendants, which was set aside, and a new trial granted. At the succeeding term, the cause was entitled — Samuel Bullard, vs. Charles Wheeler, Jordan Wheeler, and Thomas Wheeler, survivors, <fcc., when judgment was rendered in the following terms: “Came the parties, by attorney, and the defendants withdraw their pleas, whereby said ac*357tion remains undefended: it is therefore considered by the court, that the said plaintiff recover of said defendants, the sum of three hundred and eighty-eight dollars, his damages in the declaration stated, as well as his costs.” No declaration appears in the record.
The defendants below have sued out a writ of error to this court, and insist that the court below erred—
1st. In rendering any judgment against the defendants, after the discontinuance made as to Thomas Wheeler, which is alleged to be a discontinuance of the suit, as to all the defendants ;
2d. In rendering judgment against the defendants,, without there being any declaration against them.
3d. In rendering judgment against Charles Wheeler, after the discontinuance as to him..
Although no formal judgment of discontinuance is entered, as to Thomas Wheeler, yet as the plaintiff applied for leave to discontinue against him, his request, when granted by the court, must, as we conceive, have this effect. It is not usual for any formal entry to be made of the discontinuance, and in cases where the plaintiff, by law, is authorized to discontinue, he may do so in his declaration —McRae and McMillan vs. Foster.* The statute which authorises a discontinuance against one, who is sued as a partner, and is ascertained not to be so, is slightly different in its terms from that which permits a discontinuance, when the process has not been served on all the defendants to a suit, and directs that the court before which the suit is pending, shall discontinue such suit against such person or persons as shall appear not to be partners.† The mode by which this fact shall be made apparent, is not prescribed. As the plaintiff is the individual who is. to receive the benefit of this enactment, no injury can arise from permitting him to determine when he will cease to pursue one of several whom he has sued as partners, but has *358ascertained not to be so, the more especially as the defendants will always have it in their power to prevent any mischief to them, by admitting the fact of partnership, when the discontinuance is contemplated.
In my opinion, the omission of the declaration, in thi 3 record, would be decisive to shew error, if the judgment had been, rendered by default or on a verdict;, because in the one case the defendant has said no-thin?, and the plaintiff proceeds at the risk that his proceedings are strictly regular; and in the other he has contested the fads set out by the plaintiff, and has in no, manner admitted their sufficiency in law, to charge him; therefore, he may be admitted, after the facts are ascertained, to deny that they constitute a legal cause of action. But no such conclusion follows in this case: here,, the defendants, by filing their pleas, have admitted that there was a declaration to. plead to, and, by withdrawing their pleas, have admitted that the defence could not be maintained. No presumption can here arise in favor of the defendants, from the facts disclosed by the-record — the suit is once continued, and afterwards- successfully resisted by the defendants. A new trial is granted, and then at the next term, the pleas are withdrawn, and a judgment is rendered on the note. It is. the opinion of us all, to permit the defendants now to urge the. want of a declaration, or a defect in it, would be countenancing a practice which has hitherto met with little favor In this court, and which cannot.be done-without overruling its decisions. In the case of Clements vs. Johnson,* it was determined, that- the defects of' an insufficient scire-facias could not be reached in-error, when the record shews a judgment after a plea withdrawn; and- Chief Justice Lipscomb,, in delivering the opinion of the court, observes, “that- although such a. judgment, is not strictly one by confession, yet- it cannot, by any sound reasoning,.be distinguished from such *359an one, respecting its effect as a waiver of defence.?-Nor can we distinguish between a defective declaration,, and no declaration. It may well be questioned whether justice is ever advanced, by permitting the. defendant to object, in a court of error, after he has made.- all the defence in his power, in the lower court, the omission of a paper, without which, no trial or proceedings of any kind could have taken place; and the presumption, in all such cases, is much more forcible, that the paper, the omission of which is alleged for cause of reversal, has been lost from the files, than that one never had existence.
In the last assignment of error, we presume the name of Charles is inserted by mistake, for that of Thomas, as the discontinuance was asked to be permitted as to-the latter named person. It has been held by this court, that the appearance of a party by attorney, will obviate the necessity for the service of process— Gilbert vs. Lane;* and we cannot perceive any reason why, after a discontinuance as to a party, he may not again be introduced into court by an appearance for him. In the present case, after the continuance and trial of the cause, then entitled as against Charles Wheeler & Co., the cause at the next term is stated as against these defendants, naming each of them.; then follows the appearance by attorney, and the withdrawal of the pleas.
If this appearance was made by an-attorney who had no authority, he is responsible to the party injured, by his interference; but- the plaintiff has a just right to: look to the appearance, as made by the authority of each defendant, and to act upon it, (see the case last cited.)
The judgment of the Circuit court is affirmed..
2 Stew. & Por. 143.
Aik. Dig. 268, s. 58.
3 Stew. & Par. 269.
3 Porter, 267.