#### August Puschel, Plaintiff in Error, v. Joseph Hoover et al., Defendants in Error.

EEEOE TO PEOEIA.

In an action against one of two partners, where the general issue only is pleaded, the non-joinder cannot be taken advantage of on the trial.

This action was commenced before a justice of the peace, and was taken by appeal to the Circuit Court of Peoria county. On the trial of the cause before Peters, Judge, at March term, 1855, the deposition of a witness was read, which proved a delivery of the articles claimed in the account, for which the action was brought. The deposition stated that the articles were delivered to Charles Puschel and August Puschel, at their shop. It appeared on the cross-examination of the witness who made the deposition, that the shop was kept by the above-named Puschels, that they were in partnership, and that the articles were always delivered to Charles Puschel, although August Puschel was present many times, at the delivery. On this evidence the defendant below moved for judgment against the plaintiff. The court denied the motion, and gave judgment for the plaintiff. The defendant below then sued out this writ of error.

H. M. Mead and C. C. Bonnet, for Plaintiff in Error.

Grove and McCoy, for Defendants in Error.

Catón, J.

This action was brought against one of two persons, who were jointly liable for the beer sold. No plea in abatement was filed, but the case was tried upon the general issue, which the court very properly found for the plaintiff, and rendered a judgment thereon. The defendant should have *341pleaded the non-joinder of his partner in the grocery, and could not take advantage of it upon the trial of the general issue. 1 Chitty’s Pl. 46; Chap. 1, Sec. 3, Rev. Stat.

The judgment must he affirmed.

Judgment affirmed.