Rowe

By the Court,

The complaint alleges an indebtedness by the defendants as partners. The answer denies the indebtedness. At the trial, the plaintiff made out a cause of action against the defendant, Chandler, but failed to establish a joint indebtedness of both defendants. The jury brought in a verdict in favor of Chandler and against Dennison, and judgment was rendered in accordance with such verdict. The question is thus presented, whether, if, in an action on contract against two or more defendants, the plaintiff fails to make out *169 the joint liability of all, he may take judgment against one or more, who are proved to be liable.

The point is to he determined under the provisions of the Practice Act of this state, which, so far as this question is affected, is, in substance, and for the most part literally, a transcript of the Code of Procedure of the state of New York. Under that code it has been held by one of the justices of the supreme court of New York in the case of Merrifield v. Cooley, (4 Howard's Pr. Rep. 272,) in an action, like the present one, against several defendants to recover damages for the breach of á contract, that the plaintiff must recover against all…