majority">Ryland, Judge,

delivered the opinion of the court.

This suit was commenced before Mann Butler, Esq., a justice of the peace, in August, 1850. An attachment was .issued, *154affidavit being made by Chester Harding, Jr. The suit was originally against B. F. Otis &-Otis. The affidavit on which the attachment issued was as follows : “ Chester Harding, Jr., being duly sworn, upon his oath says, that Benjamin F. Otis and-Otis, f(composing the firm of B. F. Otis & Co.,) are justly indebted to John E. Moore, after allowing, &c., in the sum of one hundred and forty-eight dollars and twenty cents, on account of a promissory note made by said B. F. Otis & Co., and this affiant has good reason to believe and does verily believe, that said Benjamin F. Otis and-.Otis are not residents of nor residing in the state of Missouri."

After notices were given, the defendants not having been served with process, judgment by default was rendered on the 14th of September, 1850. A motion was made by defendant on lTth September, 1850, to set aside the judgment by default ; it was overruled, and an appeal was granted to the Circuit Court.

At November term, 1853, of the Circuit Court, the plaintiff, by his attorney, moved for leave to dismiss his suit as to-Otis ; this motion was sustained, and the cause was, by order of the court, dismissed as to-- Otis. Afterwards, a trial was had on the issue made by the plea in the nature of a plea in abatement, denying the non-residence of B. F. Otis and -- Otis.

I cannot find from the record of this case, now before me, whether the plea in the nature of a plea in abatement was filed, denying the non-residence of B. F. Otis and - Otis, before the plaintiff had leave to dismiss as to-- Otis, or afterwards.

The cause alleged in the affidavit on which the attachment issued, was the non-residence of B. F. Otis and-Otis, the defendants in the suit. This non-residence was denied by the plea putting in issue the truth of the affidavit. The suit-being dismissed as to-Otis, left the issue then to be tried in regard to the non-residence of B. F. Otis alone. This being the case, the instruction given by the court, that “ The only question for the jury to determine is, whether Benjamin *155E. Otis was, at the date of the attachment, a resident of or residing within the state of Missouri; if the jury believe from the evidence, that he was not a resident of nor residing in this state, they will find for the plaintiff upon the issue joined on the plea in abatement,” was legal and proper from the evidence in the case preserved by the bill of exceptions.

It would have been improper to have given the instruction prayed for by the defendant, in respect to Robert Scott being a partner in the firm of B. E. Otis & Co., and not-Otis. Robert Scott was not mentioned in the affidavit, and from all that appears, was not known as a partner of B. E. Otis & Oo. However this may be, when the suit was dismissed as to-Otis, it left B. E. Otis alone the defendant. The affidavit then may be considered as putting in issue alone his residence or non-residence; and the residence of Robert Scott was foreign to this issue, and the instruction in regard to it properly refused.

The judgment of the court below is affirmed, with the concurrence of the other judges.

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