
    William A. Gasquet et al. vs. Charles F. Fisher et al.
    It is a good plea in abatement of an action ex contractu, that too many persons are joined as defendants; as where three persons are sued as members of a firm, and the plea in abatement sets up that the firm was composed of but two.
    And if a demurrer to such plea be sustained improperly, the error will not- be cured by a subsequent discontinuance of the suit as to the party improperly joined; it seems it would be otherwise if the discontinuance had taken place before the decision on the demurrer.
    
      In error from the circuit court of Carroll county ; Hon. James M. Howrey, judge.
    William A. Gasquet & Co. sued Charles F. Fisher, James W. Eskridge, and William C. Eskridge, as joint makers of a note-made by Charles F. Fisher & Co.; to which the defendants-filed the following plea, attested by oath, viz.: “ The said defendants come and defend the wrong and injury when, &c., and pray judgment of the said declaration, because they say that the said several supposed promises in declaration mentioned, if any such were made, were not made by the said defendant, C. F. Fisher, and W. Eskridge jointly with the said William C., and this they are ready to verify. Wherefore, inasmuch as the said William C. was not, at the time of making the said several supposed promises, &c., a partner of the firm of C. F. Fisher & Co., but the same consisted alone of said J. W. Esk-ridge and C. F. Fisher; they, the said defendants, pray judgment of the said writ and declaration, and that the same may be quashed.”
    To this plea the demurrer of the plaintiffs was sustained, and the defendants, refusing to answer over, the plaintiffs dismissed their suit as to William C. Eskridge, and took judgment for want of a plea against the others ; from which they have, sued out this, writ of error.
    
      
      Broolce, for plaintiffs in error.
    This was clearly a case of misjoinder, which, as well as of nonjoinder, is always pleadable in abatement. Abatable matter is such as shows that the plaintiff has mistaken the form of his contract, or his time for enforcing it. See 1 Chitty’s PI. 445, 452. The causes of demurrer assigned are frivolous in the extreme, and one of them untrue in point of fact. The plea does give a better writ. It shows who the firm consisted of. As the plea is certainly a good one, the judgment of the court in sustaining the demurrer to it should be reversed.
    
      Cothran and Howard, for defendants in error.
    In this case there was judgment only against the parties shown to be liable. The plaintiff discontinued as to W. C. Eskridge, who, it was alleged, was not a partner. The plaintiff might discontinue as to him if he were improperly joined. Minor v. Mech. Bank, 1 Peters, 46 ; 2 S. & M. 571. The dismissal as to W. C. Eskridge amounted to a confession and disposal of the plea, and the party should then have pleaded in bar, if he had a good defence. Webster v. Freeman, 4 Howard 352; Babcock v. Scott, 1 Howard, 100. The error complained of did not injure the defendants. They admit the promise as to themselves.
    The rule of pleading relative to partnerships has been materially changed by our statute. One or all of the partners may now be sued. Nutt v. Hunt, 4 S. & M. 702. Hence the plaintiffs’ right" to dismiss as to one. Each partner is liable who was proved to have been a partner, and to have joined in the promise.
    But the plea is bad in form, for the reasons stated in the demurrer. See Babcock v. Scott, I Howard, 100. The plea does not conclude with a verification, and the plea does not give a better writ.
   Mr. Justice ThacheR

delivered the opinion of the court.

W. & J. Gasquet & Co. instituted an action of assumpsit against Charles F. Fisher, James W. Eskridge and William C. Eskridge, as the members of the copartnership of Charles F. Fisher & Co., upon a promissory note made by Charles F. Fisher & Co. A plea in abatement, under oath, was filed by the defendants, setting up that Charles F. Fisher and James W. Eskridge alone constituted the firm of Charles F. Fisher & Co., and that William C. Eskridge was not, at the time the note was made, a partner of that firm. A demurrer, filed to this plea, was sustained by the circuit court, and the defendants there declining to plead further, the plaintiffs dismissed their action against William C. Eskridge, and took a final judgment against the other defendants.

It is a rule of pleading, that if two or more are sued together, when by law the action should have been brought against any less number of them only, the misjoinder is pleadable in abatement. In this case, so far as technical rules of pleading are concerned, the plea in abatement seems to be sufficiently well pleaded, and the defects assigned upon demurrer, do not seem to exist in the plea.

A good deal of reliance is placed, in argument, upon the circumstance that a nolle prosequi was entered as to the defendant, William C. Eskridge, after the judgment upon the demurrer, and the refusal to plead upon the judgment of respondeat ouster. Had the nolle prosequi been entered before any judgment upon the demurrer, such an amendment would have been within the statute, and warranted by it, but such an amendment would have come too late after a proper judgment overruling the demurrer. Amendments can only be made before verdict, and a judgment overruling the demurrer is conclusive of the case.

Judgment reversed, and this court, proceeding to give the judgment which should have been given by the court below, direct that the demurrer be overruled, and that the plaintiffs below take nothing by their suit.  