The plaintiff sued Benjamin B. Middlebrook, factorizing the defendants individually and as co-partners. He recovered judgment against Middlebrook, took out execution, and made due demand on the defendants. They refused to pay, and defend their refusal solely on the ground that they had made payment to prior factorizing creditors upon due demand on execution in favor of such creditors.
The only question before us relates to the validity of the prior processes on which payment was thus made. In all these processes E. B. Ely is not named or served with process. The other defendants herein are named and duly cited, and J. H. & J. N. Benham are also named and cited, as being with Henry A. Wheeler and others, jointly and severally, individually and as co-partners, the debtors of Middlebrook.
*315The plaintiff’s claim is that Middlebrook’s debt was against a co-partnership consisting of the five persons who are made defendants in this scire facias, and that the prior proceedings were invalid and inoperative to hold the debt because of the non-joinder in those proceedings of E. B. Ely and of the mis-joinder of the Benhams therein.
Judgment having been rendered by the Court of Common Pleas in favor of the defendants, the plaintiff is here seeking a new trial.
In regard to the supposed misjoinder the case seems very clear. By our statute in actions at law against several as joint debtors the plaintiff may recover against such as are found to be indebted, and the misjoinder of others in the suit is not now fatal as at common law it was. If therefore Mid-dlebrook himself had sued all the persons as joint debtors who are in the prior processes described as sued, the including of the Benhams as co-defendants would be no defence; and the like rule must prevail in relation to parties factorized.
But the plaintiff argues that in an action by Middlebrook to recover his debt the non-joinder of Ely would have been a defence, and therefore must also be available against the validity of the factorizing process in which his name is omitted.
Under this head of argument several points of considerable practical importance were discussed, but the decision of the court below can be vindicated upon the special facts stated in the motion without touching any controverted matter,' and we shall decide the case upon those special facts.
The record states that the defendant Wheeler alone made the contract with Middlebrook out of which the indebtedness to him arose, and although he made it in fact in behalf of himself and his four companions in the joint speculation, yet neither at the time of the contract nor at any subsequent time was Middlebrook informed that E. B. Ely & Co. were interested in the speculation or in the contract with him. Upon these facts Wheeler might be treated by Middlebrook as his sole debtor, and by consequence might also be factorized as sole debtor and made liable as such. He evidently so *316regarded the matter. He paid the debts in the order in which service was made on him as garnishee. The • finding is that Middlebrook was not informed that E.. B. Ely & Co. were interested in the speculation, and it may be suggested that this leaves it open to the inference that he may have known that the firm of Atherton, Wheeler & Co. of Bridgeport had an interest in the contract and debt. We hardly think the record admits of such construction, but be it so, all the members of that firm are garnishees in the prior attachments which Mr. Wheeler paid. It therefore is of no significance whether the debt due to Middlebrook was due from Wheeler alone, or from him and the other members of the firm of Atherton, Wheeler & Co. Upon the facts stated in the motion, if Middlebrook had sued Wheeler alone, or sued him jointly with Atherton and Marsh, to recover the amount due upon the contract, the non-joinder of E. B.'Ely could not have been pleaded in abatement. And his non-joinder as garnishee in the prior attachments would not be a defence in a scire facias founded on those attachments, whether the scire facias were against Wheeler alone or against Atherton, Wheeler & Co.
The fact that Mr. Wheeler took a bond of indemnity upon payment of the executions is clearly of no moment.
A new trial is not advised.
In this opinion the other judges concurred; except Butler, C. J., who did not sit.