
    Robert B. Exum vs. Jonathan B. Davis.
    In assumpsit, on open account, the non-joinder of a joint contractor, who should have been made a defendant, can only be taken advantage of by plea in abatement.
    Where one of two joint contractors is sued on an open account, plaintiff’s books of account, — defendant not having objected to the non-joinder by plea in abatement, — may be given in evidence, and, although they show á joint liability, plaintiff is entitled, it seems, to recover the whole amount.
    A miller’s books of account maybe given in evidence, to prove an account for meal delivered.
    
      BEFORE GrLOYER, J., AT MARION, EXTRA TERM, 1857.
    Tbe report of bis Honor, tbe presiding Judge, is as follows: “ Tbe action was assumpsit on a miller’s account for meal furnished between tbe 5tb of May and 16tb of December, 1854. Tbe plaintiff was permitted to prove bis account, wbicb amounted to two hundred and forty-eight dollars and ninety-three cents. Tbe meal was charged to Jonathan Davis and William Barnes. One Eegister first came, and said tbe defendant bad sent him. Tbe meal was sent in defendant’s wagon, but by Wm. Barnes’ boy, and on plaintiff's requesting that orders should be sent, tbe defendant said it was not always convenient to send them, (some of wbicb bad been sent,) and that be could send without.
    “It appeared that in 1854 tbe defendant and Wm. Barnes were engaged in tbe distilling of turpentine, tbe former employing about nine, and tbe latter about nineteen or twenty, bands, and that all of their bands used tbe meal. Eegister was Wm. Barnes’ agent, and tbe defendant conducted bis own business and also attended to Barnes’ still. In June, 1854, or before, the plaintiff asked tbe defendant for money, wbo replied that he must wait until Wm. Barnes returned, and offered to give plaintiff a due bill or order, and if he would go down to Georgetown, Barnes would take it up.
    “ The attention of the jury was called to the fact that the charges were against both defendant and Wm. Barnes, and if they believed .that defendant got one-half of the meal, before the órders were sent, or used it in proportion to the number of hands’which he employed, they might charge him accordingly; and they were directed to inquire if, from the evidence, he had ordered' all the meal after July, and was liable for the whole or for what part of it.
    . “No motion was made for a non-suit, because of the non-joinder of Wm. Barnes, nor do I remember that it was insisted upon, except as a circumstance showing that the defendant was not liable for the whole amount charged.
    
      “ The jury found for the plaintiff two hundred and twelve dollars and forty-five cents.”
    The defendant appealed, and now moved for a new trial on the grounds:
    1. Because the account sued on was charged in plaintiff’s book of accounts against William Barnes and Jonathan B. Davis, and Davis being alone sued, the plaintiff had no right in this action to recover against him singly on said account.
    2. Because his Honor erred in charging the jury that previous to July, 1854, even if the charges were made against Barnes and Davis, yet plaintiff might in this action recover half the account against defendant to that time, or such part, less than half, as the jury might give him.
    3. Because his Honor erred in instructing the jury that though the charges were against Barnes and defendant, yet after July, 1854, plaintiff could recover against defendant alone tbe whole amount of account.
    4. Because tbe verdict covers a portion of tbe account before July, 1854, wben there was no proof whatever to fix defendant’s liability therefor.
    5. Because the plaintiff was not a tradesman, and his books were not legal evidence of his demand.
    
      Harllee, for appellant.
    On first ground. — The plaintiff’s books show the contract joint, though in the bill of particulars the charges were against defendant alone. The books being the only evidence of indebtedness, and showing a joint contract, plaintiff had no right to sue defendant alone. 1 Tidd’s Pr., 9; Sand. 216; 1 Ghitty’s PI. 27.
    Second and third. — There was no proof of any delivery to, or any promise by, defendant, or order by him, until his order in July, 1854. 1 N. and McC., 436Furguson vs. Ford, MS., 1826; Lance vs. McKenzie, 2 Bail. 449; Brown vs. Kin-loch and Phillips, 2 Sp., 286.
    The books of plaintiff are different from a tradesman’s or mechanic’s. This case is not analogous to Gordon vs. Arnold, 1 McC., 517. There a miller’s books were admitted to prove quantity of lumber delivered. It was a necessity; but here the books of any planter, for sales of corn or meal, are equally as admissible. Lance vs. McKenzie, 2 Bail. 449.
    
      Lnglis, contra.
   Guria, per O’Neall, J.

The objection in this case that Barnes was a joint contractor with the defendant cannot avail. The non-joinder can only be taken advantage of by plea in abatement. 1 Chitt. Plead. 46.

That the book of account charged it to them jointly was no objection to it as matter of evidence. The Judge gave tbe defendant a ratber better result than perhaps in strict law he was entitled to receive. For according to 1 Chitty 46, he might have been charged with the whole account, when .the Judge only directed him to be charged with one-half, or Ms proportion of the meal, to the time he made himself liable for the whole: and then according to it.

There can be no doubt, that a miller’s books are evidence; and there can be no distinction between the keeper of a saw mill and a grist mill. Gordon vs. Arnold, 1 McC., 517.

The motion is dismissed.

Whither, G-lover and Muhro, JJ., concurred.

Motion dismissed.  