
    Joab Bernard & Overton Bernard, plaintiffs in error, vs. John A. Parvin, defendant in error.
    
      Error to Muscatine.
    
    Under the territorial statute, suits brought upon any instrument of writing, made payable to a firm name, it is only necessary to set out and prove the partnership name.
    This was an action of assumpsit brought by the plaintiffs against the defendant in error, upon a note of which the following is a copy :
    “ $317,81. “ Bloomington, September 1, 1842.
    “ One day after date, for value received, I promise to pay John A. Parvin, or order, three hundred and seventeen dollars and eighty-one cents, with interest at the rate of ten per cent per annum.
    “ WM. BROWNELL.”
    Endorsement.
    “ November the 21, 1842, Í transfer the within note to J. & O. Bernard, with full recourse upon me.
    “ JOHN A. PARVIN.”
    The note was declared upon in the usual form, with,
    1. A special count upon the note.
    2. For money had and received.
    3. For goods sold and delivered.
    The defendant pleaded the general issue to the whole of the counts. 2d. the general issue to the second and third counts, and demurred specially to the first, for that the declaration did not allege any demand upon the maker, nor any notice of non payment to the endorser. This demurrer was afterwards withdrawn, and the case submitted to a jury at October term, 1843, and a verdict for the defendant.
    
      On the trial the court charged the jury that it was incumbent upon the plaintiff, in order to his recovery, to prove that J. & O. Bernard was a firm composed of Joab Bernard and Overton Bernard, to which the plaintiffs excepted.
    This is the error of which the plaintiffs complain.
    Whicher, for plaintiffs in error.
    Woodward, for defendant in error.
   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.  