
    Joel Hemmenway versus Alpheus Stone.
    A promissory note in form, “J promise to pay," &c., and subscribed by two persons, is a joint and several note.
    The declaration in this case was in assumpsit, and contained two counts, upon two several notes of hand, the contents of which the plaintiff claimed as endorsee. In the second count, upon which alone the question in this case arose, the plaintiff declares upon a promissory note, made by the defendant to one Frederick M. Stone, or order, dated March 9th, 1804, payable on demand, with interest, and endorsed by the said Frederick to the plaintiff. Upon this count a verdict was found for the plaintiff, at the sittings after the last October term, in this county, upon a trial had before Sewall, J., upon the general issue, subject to the opinion of the Court, upon the report of the judge.
    The report states that the plaintiff, to maintain the second count, offered a note of hand, dated March 9th, 1804, expressed thus : “I promise to pay Frederick M. Stone, or order,” &c., signed Bowman Chadwick, and below, by the defendant. This note was objected to, by the defendant, as incompetent evidence in this action. This objection was overruled. The defendant then attempted to prove the note had not been transferred in March, 1805, and that he had adjusted it with Frederick M. Stone, before it was endorsed, had paid him the money in part, and had given him another note for the balance. The evidence to this purpose, and other evidence on the part of the plaintiff to * encounter it, was left to the jury; who were directed [ * 59 ] by the judge, if they believed the note offered in evidence had not been transferred before March, ] 805, when it must be considered as discredited, and had been adjusted with Frederick M. Stone, before it was endorsed, by a payment in part, and another note given for the balance, to find for the defendant; but if not . satisfied upon these points, to find for the plaintiff.
    
      Bigelow, for the defendant,
    objected that the note declared on in the second count was not sufficiently described.
    The note produced in evidence is the joint note of two promisors ; whereas, the declaration counts upon it as the single note of the defendant. This objection, he said, would not have been urged, but that the defendant was unfortunately precluded from the evidence necessary to prove a more equitable and substantial defence, which in fact existed.
   By the Court.

The defence set up, respecting the pa) ment of the note in question, was a legal one, and the direction of the judge upon it was right. If the promisee, while he held the note, was satisfied that the.note was discharged, by a subsequent endorsement., no right passed to the endorsee, and he could maintain no action upon it. As to the facts, there was evidence on both sides, and it was properly left to the jury to decide on its effect. They have decided for the plaintiff; and we cannot say that their decision was against the weight of evidence.

As to the other objection, if this note is not several, as well as joint, then it will not comport with the declaration. But we are satisfied, that a note of this description is both several and joint. It is the note of both and each of the subscribers, and, therefore, was rightly admitted in evidence. Upon the whole, there does not appear any good ground, on which a new trial ought to be granted.

Judgment on the verdict. 
      
      ]) 5 Mass. Rep. 509, Baker vs. Wheaton.
      
     
      
      
        Peake’s N. P. 130, March vs. Ward.
      
     