The opinion of the court was delivered by
IIebard, J.The plaintiffs and one Tilden were partners. The defendant sued out his writ against the firm; and Tilden, who.was the active partner, accepted service on the same for himself and the rest. The writ was in no other way .served. Tilden employed counsel, who appeared generally in the case, and submitted to a judgment, and entered a review. At the next term of the coúrt the *533attorney withdrew his appearance, and the defendants in that suit, who are the plaintiffs in this suit were defaulted ; — and that is the judgment sought to be vacated by this proceeding.
This subject has received its share of the attention of the court on the present circuit; and two cases have been considered, which embrace all that is involved in this case. The two branches of the inquiry in this case involve the question, how far an appearance, which is general, and submitting to the jurisdiction of the court, is to be regarded as a waiver of any defect of service, that might have been taken advantage of by pleading; — and also an inquiry in relation to the authority of one partner to appear for all, and to employ an attorney, whose appearance shall be binding and coriclu-clusive.
The case of Spalding et al. v. Swift, decided on the present circuit, in Addison county, was where a suit was instituted against a firm; one of the partners lived out of the State; a single copy was left with the partner living in the State, and he employed an attorney, — as in this case, — and the absent partner was held bound' by the employment and acts of the attorney. The other case referred to is that of Newcomb et al. v. Peck et al., reported ante, page 302. These two cases are fully decisive of the one under consideration.-
Judgment affirmed.