The opinion of the court was delivered by
Williams, Ch. J.The exceptions to the auditor’s report and the judgment of the county court present this question alone, whether the account should have been charged to the defendant and Jeduthan Brown’ jointly, or to the defendant alone. It is only in this action that this question can be raised on trial of the merits. Non joinder of a defendant, in all other actions ex contractu, can only be objected by plea in abatement. In the action on book it is otherwise. Loomis v. Burrett, 4 Vt. R. 450. Before a plaintiff on this ground is turned over to another action, it should be made evident that the contract or dealings were 'with the two jointly, and not with one alone. One member of a partnership may contract separately, and make himself liable to a suit, notwithstanding others may be interested in the contract. — • In-the present case it is by no means certain that the partnership between the defendant and his brother did continue, so as to embrace the subject of the plaintiff’s account. Although not formally dissolved, it appears to have been in fact dissolved some time in the spring or former part of the summer of 1837. But whether it was dissolved or not, it appears very evident that the defendant contracted alone with the plaintiff. He declared that he was going to manage the farm alone, and employed the plaintiff, to labor, without informing him that he had a partner, and the auditor has, in effect, found that the contract was with the' defendant, and he cannot now'be permitted, on the trial of the merits, to object that another person was jointly liable with him, contrary to the declaration he made in the spring of 1837, about the time he employed the plaintiff. The judgment of the county court is, therefore, affirmed.