delivered the opinion of the court.
This is an action of assumpsit by the plaintiff in error, who was plaintiff below, against Mitchell & Cobbs on an account. Upon the trial on the issue of non-assumpsit, the court, upon motion of the defendant, instructed the jury that, if they believed from the evidence that the contract, for the breach of which the plaiptiff sues, was made with a partnership firm, of which William A. J. Finney was a member, in addition to the two defendants, they should find for the defendants.” To this instruction the plaintiff excepted, and it raises the question upon which this case turns.
When a person who ought to join as plaintiff is omitted, if the objection appears upon the pleadings the defendant may demur, move in arrest of judgment, or bring a writ of error. If it does not appear upon the pleadings, but is disclosed by the evidence, the plaintiff will be non-suited. But in case of defendants, if a party be omitted who is liable to be sued jointly with the defendants, the objection.can be taken only by plea in abatement, verified by affidavit. 1 Chitty on Pleading, p. 53, 16th A. Ed.
Mr. Eobinson says: “ Pleas in abatement on account of all contracting parties not being sued, were first made necessary in the time of Lord Mansfield. It was then adjudged *171(in 1770) that the defendant must say in his plea who the partners are, and that if he does not plead the matter in abatement, the objection is waived.” 5 Rob. Prac. p. 78. He cites Rice v. Shute, 5 Burr. 2613; 2 Wm. Bl. 695; Abbott v. Smith, 2 Wm. Bl. 947; Buller, J., in Reese v. Abbott, Cowp. 832, and Sheppard v. Baillie, 6 T. R. 329.
Prior to Rice v. Shute, it appears from the same writer that the defence of “other joint contractors not sued,” would avail upon non-assumpsit if the defendant showed, in an action on a sole contract, tliat he had promised jointly with another, his issue was regarded as proved. If that doctrine prevailed now, the instructions given by the court in this case could be maintained. The cases which held that doctrine, it seems, were decided after the action of assumpsit was substituted for the action of debt in cases of simple contract, and before the plea in abatement had been introduced for that form of action. For De Gray, C. J., says : “ Proof that another also contracted does not prove that I did not contract.” And he observes, this doctrine is as old as the year books. And most of the cases to which he refers, Sir James Mansfield remarks, are cases of debt on simple contract, which was the usual mode of declaring previous to Slade’s case. Cited 3 Rob. Prac., ch. 73, § 1, p. 389.
But since Rice v. Shute and Abbott v. Smith, defendants can avail themselves of the objection only by plea in abatement. Lord Ellenborough, C. J., referring to these cases in 43 Geo. 3 (1802), said : “That since these'cases nobody can entertain a doubt that the objection was available not only by plea in abatement, but that it was available in that way only, and cannot be taken advantage of on the general issue.” Mr. Eobinson cites numerous cases, English and American, in support of this doctrine.
And in his old book on practice, vol. 1, p. 163, he says when one partner is sued alone upon a partnership transac*172tion, the defendant can only take advantage of it by pleading in abatement and pointing out the other partners. His failure to plead in abatement is a waiver of the objection. He cannot, after pleading to issue, give evidence at the trial that there was another partner not joined in the action And this rule holds, although it should appear by the evidence that the plaintiff knew of the partnership ; and he is fortified by the decisions of this court and -by other States to which he refers.
It is clear, then, that the instruction is wrong, and that the verdict of the jury, which was in pursuance to it, is also erroneous. The court, is of opinion, therefore, to reverse the judgment of the circuit court, to set aside the verdict and grant the plaintiff a new trial, and to remand the cause for further proceedings to be had thereon in conformity with this opinion.
' Judgment reversed.