¶1delivered the opinion of the court.
¶2Adderton sued George and Susan Collier for the possession of a negro girl, under the provisions of the seventh article of the practice act, R. C. 1855, p. 1242. The summons was returnable to the May term, 1858, and was duly served. Mary and Sarah Collier, two daughters of the defendant Susan, claimed the slave, and at the time of the service of the writ, they, instead of the defendants, furnished security, and gave bond to the sheriff for the delivery of the property to answer the judgment of the court at the return term. On the motion of the plaintiff, said Mary and Sarah were made defendants in the cause, and at the same term they filed their answer to the petition, denying the right of the plaintiff, and setting up their own right of possession of the property in controversy: At the next term of the court, [November, 1858, ] the plaintiff filed a motion for leave to dismiss the case as to the defendants Mary and Sarah, and for a judgment by default against defendants George and Susan. The court refused leave to dismiss, but rendered the judgment by default, and continued the cause. At the May term, 1859, a trial of the issues made by the petition and answer was had, which resulted in a verdict and judgment for the defendants Mary and Sarah. At the November term, 1859, an inquiry of damages was had, in which the value of the slave was assessed at eight hundred dollars, and damages for its detention at one hundred and twenty dollars, and judgment therefor was made final against the defaulting defendants, George and Susan Collier. At the May term, I860? the court, on the motion of Tabb and Durret, the securities on the delivery bond, amended the record of the preceding term by striking out their names from the entry of the judg*511ment, which, it was alleged, were inserted by the mistake of the clerk, and not in accordance with the judgment of the court. The plaintiff, Adderton, duly preserved his exceptions to the various adverse decisions of the court, and the case is brought here by him and by the defendants George and Susan Collier, by cross-writs of error.
¶3' 1. In the view we have taken of this case, the only ground of error complained of by the plaintiff which we need notice is the refusal of leave to discontinue the action as to the defendants Mary and Sarah.
¶4Leave to discontinue ordinarily is, and ought to be, given a plaintiff, but the giving or refusing it is a matter of practice resting in the discretion of the court. It ought never to be given where it would deprive a defendant of a just defence. (Kirtly v. May, 29 Mo. 220.)
¶5It was on the plaintiff’s own motion that the parties proposed to be discontinued were made defendants. They had answered and assumed the whole burden of the defence, and the plaintiff had accepted them as his real adversaries in the case. The original defendants having no interest in the subject’of the action, trusting the defence alone to those who were concerned in its success, made no answer, and suffered the time within which to answer to expire. In this condition of things, the court could not have permitted the discontinuance without wrong to the defaulting defendants, and permission was therefore properly refused.
¶62. The defendants George and Susan Collier assigned for error the assessment of damages against them, and making final the judgment by default after the verdict and judgment of the court in ■ discharge of their co-defendants Mary and Sarah.
¶7The defence made by Mary and Sarah, which resulted in the verdict and judgment for them, was not based upon any ground personally to themselves, but was equally available by the other defendants, and was such as showed that the plaintiff had no cause of action. And it is the settled law in such cases, that after verdict and judgment for the defendant *512who pleads, the plaintiff cannot take judgment against the defendants in default, for the reason that upon the whole record it appears the plaintiff has no right of action. (2 Tidd’s Prac. 986; 2 Lord Raymond, 1392; 1 Levinz, 63.)
¶8The Circuit Court therefore erred in rendering the said final judgment against the defendants George and Susan, and the securities Tabb and Durrett, and its said judgment is reversed ;