Bernard v. Parvin , 1 Morris 309 ( 1844 )

Pee Curiam:

Mason, Chief Justice.

The commencement of the declaration in this case reads as follows:

“ Joab Bernard & Overton Bernard, merchants, trading under the name and style of J. &. O. Bernard, complain &c.”

The suit is brought against the defendant as endorser of a promissory note, which endorsement is in the words following :

“ November the 21st, 1842, I transfer the within note to J. & O. Bernard, with full recourse upon me.

(Signed) “ JOHN A. PARVIN.”

On the trial below, the court charged the jury, that it was incumbent upon the plaintiffs to prove, that the firm of J. & O. Bernard, is composed of Joab Bernard & Overton Bernard. This is assigned for error, and raises the only question presented by the case.

We think the court erred in giving the instruction. The statute declares that in all suits, brought upon any instrument of writing, made payable to partners trading together under their partnership name and style, it shall only be necessary to prove the partnership name and style, without proving the names of the individuals who compose the same. No direction is given as lo the shape of the commencement of the declaration, and although it would probably be as well to sue in the partnership name merely, still, as the statute makes no exceptions to the sweeping rule it has prescribed, we do not feel justified in making any.

The judgment below, will therefore be set aside and a new trial ordered.