delivered the opinion of the court.

This was an action of assumpsit, in the Warren circuit court, upon a bill of exchange. The defendants pleaded nonassumpsit. On the trial, the plaintiffs offered to read to the jury the bill on which the suit was brought, which the court refused, on the ground of variance in the description of the bill declared on, from the one offered in evidence. The plaintiffs then suffered a non-suit, and there was judgment against them for the costs.

In answer to the assignment of errors, it was insisted by the counsel for the defendants, that this is not a proper case for a writ, of error, and that error will not lie from a judgment for a voluntary nonsuit. It is very evident that the reasons in support of appeals and writs of error, cannot be made to embrace the case of a voluntary default; for, in that case, though the judgment be ever so erroneous, yet being a consequence of the party’s own conduct, he cannot be heard to impeach it. It is a judgment sought by the party, and supposed to be rendered for his benefit. How then can he complain of it? Can it be assigned for error that the court allowed the plaintiff to take the step asked for by himself? This view of the subject has been taken by the courts *335in England, and also by those in this country. In the case of Kempland v. M'Cauley, 4 D. & E. 436, it was held by all the judges, that error would not lie on a voluntary nonsuit. They say “ it is apparent that there can be no error of which the plaintiff can avail himself; for if the record were manifestly erroneous, the plaintiff, who has made default by suffering a nonsuit, can never have a judgment afterwards in his favor.” The case of Bax v. Bennet, 1 H. Black. 432, is an authority for the same doctrine. The case of Evans v. The United States, 5 Cranch, 280, is identical in principle with the one before us, and it was there held by the Supreme Court of the United States, that error could not be supported. In support of the writ of error, the counsel for the plaintiffs have relied on the case of Smith v. Lutts, 2 Johns. Rep. 9; and other cases decided by the Supreme Court of New York. But upon looking into these, we find, that in each of them the nonsuit was compulsory, was the judgment of the court upon the motion of the defendant, and that it was resisted by the plaintiff; such was the case of Smith v. Lutts. In Van De Veer v. Staunton, 1 Cowen, 82, the justice before whom the cause was tried, nonsuited the plaintiff on the motion of the defendant, and gave judgment against him for the costs. The Supreme Court says “the justice erred in nonsuiting the plaintiff.” In Schermerhorn v. Jenkins, 7 Johns. Rep. 373, the same principle is stated. It was an action of assault and battery by an infant. The defendant pleaded in chief. It was admitted at the trial that the plaintiff was an infant. The defendant thereupon moved for a nonsuit, unless a guardian was appointed for the plaintiff, and none being appointed, the court ordered the plaintiff to be nonsuited. In New York, the courts possess the power to nonsuit the plaintiff; and when this is done against his consent, he should be allowed to impeach the decision. In this state, the courts possess no such power, and never exercise it. The utmost extent to which they can go is, to instruct the jury to find a verdict as in case of non-suit, and this is often done. When erroneously done, the plaintiff has an undoubted right, upon principle and authority, to review the judgment in the court of errors. In the present case, the plaintiff voluntarily abandoned his cause, made default in the language of the books, and suffered a nonsuit. This step, on his *336part, may have been superinduced by an error in the court in rejecting his proof; but that cannot alter the effect of the judgment. We cannot look into the motives which influenced the plaintiff. It is sufficient that the record informs us that he was nonsuited by his consent, and on his own motion.

Let the cause be dismissed with costs to the defendant, &c.