
    Fairchild et al. v. Grand Gulf Bank.
    The note offered in evidence contained as an addition to the signature, the words: “ in liquidation,” which were omitted in the description in the declaration; held a mere addition of this land need not be noticed in the declaration, and if omitted will not amount to a variance.
    In this state, if the defendant sued on a note made by a firm, deny on oath the execution of the note, it is equivalent to denying that he is a member of the firm, and in absence of all other proof, the finding must be in hié favor.
    It has been repeatedly decided, that pleading to the merits admits the execution of the note.
    By statute’ of this state, the common law in relation to proceedings on bills of exchange and promissory notes has been changed, as follows: 1st. The holder of a bill, bond, or note, may sue any number of the parties in the same action. 2d. All promises by partners are declared to be joint and several. 3d. In actions against co-partners, it is sufficient to declare against one or more, either severally, or as co-partners, alledging the liability to have arisen by the promise of the party sued, under such signature as the writing exhibits. 4th. In actions on bills or notes, the makers and endorsers must be sued in one action, and the jury may render a verdict in favor of a part of the defendants, and against the others.
    IN ERROR from the circuit court of the county of Hinds.
    This was an action of assumpsit instituted by the defendants in error, in the circuit court of Hinds county, against Robert Jones and James Richey, (as surviving partners of the firm of Fairchild, Jones & Co.) composed, as the plaintiffs below in their declaration averred, of the said Jones, Richey, and William M. Fair-child, deceased; also against John A. Fairchild, Jordan Elder, and Daniel Thomas.
    The declaration contained four special counts, describing severally, four promissory notes purporting to have been made by the defendants below to the'plaintiffs, for the sum of two thousand and five hundred dollars each.
    The description of the said notes, and of the parties defendants, in each several count, was the same, and as follows: “ Whereas the said defendants Robert Jones and James Richey, late merchants and partners with Wm. M. Fairchild, deceased, and using the name, style, firm and signature of “ Fairchild, Jones & Co.,” the said John A. Fairchild using the signature of J. A. Fairchild, the said Jordan Elder using that name and signature, and the said Daniel Thomas using the name and signature of Daniel Thomas, heretofore, to wit: &c. made their certain promissory note in writing, bearing date, &c. and thereby then and there'promised to pay on the &e. to the plaintiffs, twenty-five hundred dollars, for money loaned to Fairchild, Jones & Co.”
    The defendant, Richey, filed the pleas of non assumpsit and a special plea setting out, that the notes sued on were-not his, &e. with an affidavit of their truth. The defendants, J. A. Fairchild, Elder and Thomas pleaded the general issue: to all which pleas the plaintiffs below joined.
    On the trial of the cause, the plaintiffs below offered in evidence four several promissory notes of equal date, and precisely similar in their execution; of one of which the following is a copy:
    “ Grand Gulf, September 20, 1836.
    “On the first day of December, 1837, we promise to pay to the President and Directors of the Grand Gulf Rail Road & Banking Company twenty-five hundred dollars, for money loaned to Fair-child, Jones & Co.
    (Signed,) Fairchild, Jones & Co., In liquidation.
    
    J. A. Fairchild,
    JoedaN Elder,
    Daniel Thohas.”
    To the reading of said four notes in evidence to the jury, the defendants below objected, on the ground of variance. The court overruled the objection, and permitted thenrto be read, to which the defendant below excepted.
    The plaintiff below offered in proof, in opposition to the plea of Richey, denying on oath his execution of the said four notes, and the court instructed the jury, in the absence of such proof, to find for Richey.
    The plaintiffs in error, the other defendants below, then moved the court to instruct the jury, that if they found for the defendant Richey, on the ground of his plea, they should also find for the other defendants, which instruction the court refused to give.
    Exceptions and writ of error to this court.
    
      Foote, for plaintiff in error.
    The court erred in permitting the four notes so offered, to be read in evidence to the jury; because, 1st. They were not those described in the declaration, but substantially variant from those. The notes so offered purport to have been given for money loaned to “Fairchild, Jones, & Co.” Whoever may have composed that firm, they were not however made by that copartnership, but were signed by some one member after a dissolution of that co-partnership, using a signature (by custom among merchants) denoting a dissolution.
    The abbreviation “& Co.” is an important part of a copartnership name, when the party declaring attempts to set out the signature in full, indicating as it does the connection of one or more with those whose names appear in the firm. The words « in liquidation” become equally an important part of a signature, importing the reverse of a connection, to wit: a dissolution.
    “ The plea of non assumpsit denies the contract, and unless the contract offered corresponds with that described in the declaration, it is not the same, and cannot be given in evidence. In all actions ex contractu, the contract given in evidence must correspond, &c. If there is a recital hscc verba, it must be strictly accurate. Wilson v. Cadmans, 3 Cranch Rep. 193. 5 Cond. U. S. Rep. 233. 7 Cranch Rep. 217. 1 Peters’ Rep. 317.
    The plaintiffs below attempt with minuteness to set out in hsec verba, each signature in each note; and alledge that the notes sued on were made by certain individuals, and that they used a particular signature, to wit: the copartnership name, &c. of “Fairchild, Jones, & Co.” Suppose the plaintiffs below had averred that the notes sued on had been made by certain’ persons using the copartnership name of “Fairchild & Jones” and should on the trial offered in evidence others signed “Fairchild, Jones & Co.” would any one pronounce the signature the same ?
    2. But had the notes so offered, corresponded with those as described in the declaration, yet, under the state of the pleadings they could not have been read in evidence of the demand, without proof aliundi, of the copartnership. In the case of Baughan and Morton v. Graham, 1 How. Rep. 222, a note had been sued on signed by “ A. Baughan & Co.” and “ A. H. Mortonthe note was alledged to have been made by William A. Baughan and Augustin Baughan, under the firm of “ A. Baughan & Co.” This court held, “ that there was nothing in the instrument itself, or in any part of the record, which shows that William A. Baughan was a member of the firm, or who in reality composed the firm. The declaration, it is true, is against him as such ; but is not something more required to create a liability? The averment in the declaration cannot be evidence sufficient to put the defendant on proof that he is not liable without some showing against him. The note was as good evidence against any other person, and the law never puts the defendant to the trouble of establishing a de-fence, until there is some proof against him as to his liability.”
    How much more essential was such proof in this case. Even admitting, for the moment, that the notes corresponded with the declaration; yet the notes as offered had been, (it would seem,) made by one member, of a previously existing partnership, (now dissolved,) and for value, acknowledged by him alone to have been received by that copartnership.
    
      “ Where the confessions of any one of a copartnership are to be taken in evidence of a debt by the firm, there must be proof ali-undi of the joint contract.”
    ■ “ An acknowledgement by one of a previously existing debt, may take the case out of the statute of limitations; but to be binding, the copartnership debt must be proved,” &c.
    “ One partner, after a dissolution, cannot bind the firm by a new contract.” 3 Kent, 49. Hockley v. Patrick, 3 John. R. 536. 6 do. 269. 11 Pick. R. 408. 2 Barn. & Cress, 23.
    The court erred in refusing to instruct the jury as prayed by the plaintiffs in error.
    The plaintiffs below, it is true, might have sued any one or more of several joint members of a copartnership, upon a joint contract; but having here sued three persons, averring that they composed the firm, they could not obtain a verdict in favor of one and against the others. Certainly no rule is better settled. 1 Chitty, 50. Jones et al. v. McGahey, 1 How. Rep. 129. “In actions against partners, the contract declared on must be proved : it must be shown to have been a joint contract entered into by those who are sued. For in such an action, (unlike one founded on a tort,) it is not sufficient to establish a demand against a single defendant: the contract as it is alledged must be established, both in its terms, and as it affects all the defendants who are called upon to fulfil it. If the plaintiff fail to substantiate it in part, by any inability to implicate and connect all the defendants with the contract he, has stated to have been made by them, he fails in toto, and must institute a new suit against those he can implicate.” Gow on Partnership, 306, 307. Tom v. Goodrich et at., 3 John. R. 314.
    The defendants in error seem to rely on the rule of pleading in the case of McWilliams v. Willis, 1 Wash. Rep. 199. The rule for which we contend was clearly acknowledged by the court in the decision of that case. The -treasurer of the Jockey Club had rented from Willis a piece of ground for the use of the club, and by an agreement bound himself to pay for said ground. In the declaration, he was not described as treasurer of the Jockey Club, &c. The court drew a distinction between this and the case of merchants and partners. “ This is not like the case of merchants and partners; because in contracts made by them they are all jointly and severally liable for the whole. In this each subscriber is liable only for his proportion j therefore an individual contracting with the treasurer knows nothing of the state or value of the fund, and cannot be supposed to go upon the credit of that fund.”
    But, say the defendants in error, “ There can never be occasion to introduce evidence aliundi to prove a copartnership, unless , that fact be put in issue by affidavit,” &c.; and the statute of 18361 is relied on to sustain the position. There is nothing in the statute referred to, that conflicts with the rule in 1 Chitty, 50, and 1 Howard's R. 139. It only makes an affidavit of the truth of the plea necessary to impose the onus probandi of the liability of all the defendants charged upon the plaintiffs. Nor does it conflict with the established rule of pleading exhibited in Gow on Partnership, 306, and recognized in 1 Howard's R. 333, and in numerous other cases. It declares that all contracts, &c. of copartners shall be adjudged joint and several; and enables the plaintiff to sue one or more at his option. If he chooses to sue them as co-partners, alledging their liability to arise by their contract, signed by such signature, as the writing in fact imports, then it shall only be necessary to exhibit in evidence the written contract declared on, and executed by the signature averred. And it shall not be lawful for any of said defendants, being sued as above, to deny, &c., except by plea supported by oath of the party or some credible witness, &c. Most clearly the fact of copartnership is as completely put in issue by the affidavit of one, as that of all who are alledged to be such, and as such to have made the contract. That fact, then, having been put in issue by the plea and affidavit of Richey, the proof above contended for became absolutely necessary to the plaintiff’s recovery. And furthermore, the statute of 1836' does not affect the case of contracts made by one member of a previously existing copartnership after its dissolution ; that fact appearing on the face of the contract itself.
    Whether the Grand Gulf Bank could have sustained an action against the plaintiffs in error alone, having declared against them alone, is a question that does not arise in this cause. They did not so declare; and they could not have discontinued as to all the defendants, except the plaintiffs in error. In the" notes offered in evidence, the plaintiffs in error appear as sureties unequivocally: no consideration was received by them. The statute of 1837 (see Laws of Mississippi, page 718, sec. 8,) authorizes the plaintiff, when he shall have sued endorsers or securities in joint action, to discontinue as to any one or more of them, before verdict, upon payment of costs; but not as to principals.
    Dabney, for defendant in error.
    The first error alledged, is a variance between the allegation and proof, occasioned by omitting in the declaration, the words “ in liquidation.” Had the attorney attempted to set out the notes in hxc verba, the variance would have been fatal. But here he attempted no more than such a statement as is usually made, and inasmuch as the words added to the signature of Fairchild, Jones & Co.- do not affect the legal construction of the note in this action, they are immaterial. The rule with respect to such words, is be-' lieved to be clear. In McWilliams v. Willis, 1 Wash. Rep. 199, the maker of the note had added to his name, “ Treasurer of the Jockey Club,” of which the declaration made no mention; held no variance. The case of Shelby v. Mandeville, was such a statement of the note, (a) 7 Cranch, 217, as showed it to be payable on demand; the note produced was at sixty days: there the variance was fatal, because it was in the legal effect. In the principal case the legal effect was in no way varied by the omission of those - words; they were surplusage, as adding the word “ executor” would be.
    But if the plaintiffs in error be right on this point, they cannot take advantage of the error, because it is an error in prejudice of the surviving members of the firm, and not of the plaintiff. Pey-ton v. Hallidáy, 2 Howard, 870. The principle decided in Hack-ley v. Patrick, 3 Johnson, ¿26, if eyer applicable to this case, was overruled by the supreme court twenty years afterwards. See argument of Chief Justice Marshall, in Barry v. Foyles, 1 Peters, 316-17, adopting the opinions of the court in Rice v. Shute, 5 Burrow, 2611; and Abbot v. Smith, 2 Blackstone, 695. If these cases do not overrule the authority of Hackley v. Patrick, it is because the cases were different. This court, 1 Howard, 129, decided on assumpsit on an open account, that all the defendants must have contracted, or the plaintiff could not have judgment. But this, if it ever was law, in an action on a specialty or note, has been overruled by the case of Barry v. Foyles, by Peyton v. Halliday, and by the statute of February, 1836. It seems absurd lo hold that a plaintiff may release a party bound by a promissory note, by discontinuance, without releasing other defendants; and the verdict releasing one shall release all.
    If this point shall be deemed so far doubtful that the court will consider it a point to be now settled, the argument is clearly for the defendants in error. Make the most of the error, and the Grand Gulf Bank has a right to recover of these plaintiffs, by declaring against them alone, and replying to their plea in abatement, that Fairchild, Jones & Co. are not bound by the signature “ in liquidation.” Chitty (Pleading,) lays it down as settled, that to aplea in abatement where another (not sued) was jointly bound, the plaintiff may reply that the other was a married woman, and have judgment against the co-obligor defendant.'
    There can never be occasion to introduce evidence aliundi to prove a partnership, unless that fact shall be put in issue by affidavit. The statute of 1836, makes this inoperative, and thus destroys the value of Baughn v. Graham as a precedent.
    The counsel of the defendant in error holds it to be clearly established by reason and precedent:
    1. That if several be sued as makers, any one may plead and prove non est factum, without affecting the obligation of the other defendants.
    
      2. That the error, if any, must be prejudicial to those who have appealed from the judgment, to entitle them to a reversal.
    3. That a'matter which goes only in abatement, must be pleaded in abatement, and cannot be taken advantage of by instruction to the jury, after issue joined on a plea in bar. If we be right in any one of these, the judgment must be affirmed.
   Mr. Chief Justice Shamev

delivered the opinion of the court.

This suit was instituted by the defendant in error on four promissory notes, made by Fairchild, Jones, & Co. with1 John A. Fairchild, Jordan Elder, and Daniel Thomas as their sureties. Two errors are assigned : 1st. that the court erred in permitting the notes offered to be read in evidence on account of a variance; and 2d. that the court erred in refusing to charge the jury as requested by the counsel for the plaintiffs in error.

The variance complained of is this: the declaration described the notes as being signed by Fairchild, Jones, & Co: the notes offered contained their signature with the words «in liquidation” added to it. These words constituted no part of the signature or description of the firm; nor do they in any way vary the contract described in the declaration. Nor do we know that they necessarily indicate a dissolution-of the firm. They were probably added to denote the purpose for which the notes were given. A mere addition of this kind need not be noticed in the declaration,' and if omitted it does not amount to a variance. If the legal effect of the contract be truly stated, it is sufficient; an addition which is added to distinguish one person from another of the same name, may be properly used; but a mere addition denoting the character in which the party signs, or the purposes for which the note was made, may be safely omitted.

One of the firm of Fairchild, Jones, & Co. to wit, James Richey, by plea verified by affidavit, denied the making of the note, which denial was not contested, and thereupon Fairchild, Elder and Thomas moved the court to instruct the jury, that if they found for Richey, then because the cause of action would be different from that described, they must also find for the other defendants, which charge the court refused to give.

The common law on this subject has undergone material alterations by statutory provisions. 1. The holder of a bill, bond or note, may sue any number of the obligors in the same action. 2. All promises by partners are declared to be joint and several. 3. In actions against copartners, it is sufficient to declare against one or more, either severally or as copartners, alledging the liability to have arisen by the promise of the party sued, under such signature as the writing exhibits. 4. In actions on bills or notes, the makers and endorsers must be sued in one action, and the jury may render a verdict in favor of part of the defendants and against the others. These several provisions were designed to simplify proceedings on notes or bills, and to obviate difficulties which might arise in pursuing the course of the common law, and the case before us falls within the spirit of these enactments. Richey’s name was not to the note, but he was sued as one of the firm of Fairchild, Jones, & Co. He denied the execution of the note under oath. This was equivalent to denying that he was a member of the firm, since if he were a member of the firm, and the note was signed by any one of them for -a legitimate purpose, it was still his note. Fairehild & Jones were not thereby exempted from liability; they also should have denied the making of the note under oath, in" order to exonerate themselves. By pleading to the merits, they admitted their liability, and so did Elder and Thomas. Under the influence of these several provisions, we do not feel at liberty to reverse the judgment, whatever the.common law rule may be.

Judgment affirmed.  