It is well settled, that in this form of action, the misjoinder of plaintiffs, as also that of *50defendants, is a ground of non-suit; and where the action is brought against, several, the plaintiff being charged with the proof of the contract as laid, must cither shew that the defendants were partners, or that the contract was made in behalf of all the defendants. Then in the present ease, though Findlay might have assumed as a partner of the other defendant, yet that not proving the fact, the partnership should have been established by evidence. It was not necessary, as charged, to have pleaded in abatement, in order to contest the partnership. There was then error, for which the judgment must be reversed and the case remanded.
Reversed and reminded,
Judges Saffold and Crenshaw not sitting.