¶1This judgment was erroneous. The action was brought for a dissolution of the partnership as between the plaintiff and the defendants, and for the taking of an account; and if the referee found for the plaintiff upon the issue raised by the answer, he should have also found that the defendants were liable to account, and should then have proceeded to take the account.
¶2His finding upon the question of fact appears to have been correct. There is nothing in the case to show that the defend*624ants were incorporated as a joint stock company, by special act, or under any of the general acts passed for that purpose. There was merely a voluntary association or partnership. Nor is this an action at law by one partner against another, but an action analogous to the former proceedings in equity for a dissolution and accounting. The plaintiff was entitled to withdraw upon giving the three months notice, and to his share in cash. The constitution does not define what is meant by his share, and it must therefore be taken to be his actual interest, whatever it was at the time of his withdrawal.
¶3The receipt of certificates of stock for the amount paid in by him, payable in two years, might be an answer to any demand for that amount, before the certificate became due, did the constitution not provide that upon a member’s withdrawal, his share should be paid in cash.
¶4The members of the association who had withdrawn were properly excluded as witnesses. The effect of a judgment in favor of the defendants would be to discharge a claim, for which, as members of the company, they would be jointly liable. That they had withdrawn, would not affect the nature of their interest.
¶5The clause in the constitution providing for the settlement of disputes by arbitration, woxxld not deprive the plaintiff of the right to maintain the action, and was therefore properly disregarded by the referee.
¶6The referee was also right in trying the issue as presented by the amended answer. It is the substitute for the original answer, which is no longer to be treated as a pleading in the case.
¶7The referee should go on and take an account, and when the share to which the plaintiff is entitled is ascertained, the plaintiff’s remedy will be to apply to the court to order a sale of the joint effects, the appointment of a receiver, &c., proceeding as was usual under the former equity practice.
¶8The claim for wages under the peculiar agreement entered into by these parties, must be taken into accoxxnt in determining the share of the plaintiff at the time of his withdrawal.
¶9Judgment reversed, and cause referred back to the referee, with costs to abide the event.