
    John M. Dunham versus John Gillis.
    Where three or more copartners have contributed severally and in different proportions to the joint stock, and one of them withdraws from the copartnership, in violation of their mutual agreement, each has his several remedy for a breach.
    The plaintiff declares in covenant broken, upon the following indenture, viz.: —
    “ This indented agreement or mutual contract made between 
      John M. Dunham, of, &c., John Gillis, of, &c., and Robert Harrington, of, &c., witnesseth that we, the subscribers, mutually agree to enter into partnership, in the manufactory of printing ink, to be carried on at Cambridgeport, upon the following conditions, viz.: The said J. M. Dunham to find suitable works to carry on the business, together with his reasonable time, to superintend and make sale of said printing ink, and to receive one half of the net profits which may arise from said business, for the term of five years from the date of these presents. And the said J. Gillis engages, on his part, to aid and assist in the business, by advancing money for stock to carry on said business, to the amount of three hundred dollars, to be laid out as soon as is necessary to expedite the business, which sum, if necessary, to continue as a fund in the business until the expiration of the copartnership. The said John Gillis is to receive the aforesaid sum at the expiration of said copartnership, * with one fourth of the net profits which may arise in said business, as received from time to time ; and to share his loss in proportion to his gain, if any should occur in said business. And the said Robert Harrington, on his part, agrees with the said Dunham and Gillis to be and continue in the business aforesaid according to the best of his power and abilities ; and for his service to receive one fourth of the net profits on said business, to be paid as the money is received, from time to time. The firm to be John M. Dunham &/• Co., not to be published till necessary. And, for the security of the copartnership, we mutually agree that none of the parties will be accountable for any debts but what is immediately connected with the business. In witness of the above, we hereby pledge ourselves to a faithful performance.” Dated June 18th, 1809.
    The plaintiff avers that he hath kept and performed all the covenants on his part to be kept and performed ; and that the said Gillis, though requested, has not kept and performed all the coy enants on his part to be kept and performed ; but on the 23d day of October, 1809, seized upon, took, and carried away the said co-partnership funds, stock, and materials, and sued out of the clerk’s office of this county a writ of attachment, for the money by him advanced to said copartners, against said Dunham, and certain persons who had bought ink of said copartners, as trustees of his goods, effects, and credits ; and withdrew the money advanced by him under his said covenants, and by other illegal and improper acts and doings, the said Gillis destroyed the establishment of said copartners at Cambridgeport aforesaid, &c.
    After a trial had, and a verdict for the plaintiff, at the last No vember term in this county, the defendant moved in arrest of judg ment, assigning as a cause, that the action was brought to recover damages for the breach of a covenant entered into by him with the plaintiff and Harrington jointly, as appeared by the declaration in the case ; and the action ought to have been brought in their joint names, and not in the name of Dunham, severally.
    * When the cause was called up at this term for argument, it was suggested by the Court, that the inden- ' turc declared on was not on the record; and that the declaration alleged a covenant only between the plaintiff and defendant, and was in point of form sufficient. An agreement was then made that the indenture, of which a copy was furnished, was admitted in evidence at the trial, although objected to by the defendant; and if the Court should be of opinion that the same was improperly admitted, and that the plaintiff could not maintain the action upon it in his own name alone, the verdict should be set aside, and the plaintiff become nonsuit.
    
      Townsend, for the defendant,
    contended that, this being an indenture of three parts, the covenants of each one were with the other two, and any action for a breach of those covenants should be brought in the name of the other parties jointly, since the injury and damages must, from the nature of the thing, be joint. 
    
    
      Parker, for the plaintiff,
    agreed that where the action was against a stranger, all must join; and to this point are the authorities cited for the defendant. But it is otherwise where the action is between the parties to the agreement, as here. Their interest is in its nature several, and the damage to the plaintiff and Harrington was very distinct and unequal; the latter being merely a laborer, and having no interest in the funds or stock of the copartnership.  But if the defendant’s objection is good, he is now too late to avail himself of it; he should have pleaded the matter in abatement. 
    
    
      
      
        Chitty on Pleading, 7,12. — 1 Saund. 153,—2 Strange, 820,1146, -6 D. & E. 770. -lB. & P. 73-l East’s Rey. 497. — 8Mod. 166.
      
    
    
      
       1 Saund. 291. — Chitty, 12.
    
    
      
       3 Mod. 263.
    
   By the Court.

This point is settled by the case of Tippet vs. Hawkey, (3) which was not cited in the argument. Here the consideration was several. The parties contributed severally and in different proportions to the joint stock. Their covenants were several, and each has his several remedy for a breach. The admission of the indenture in evidence at the trial was therefore Draper.

Let judgment he entered on the verdict.  