
    
      M. S. Ball & Co. vs. John L. Strohecker.
    
    1. Where, in an action brought by the indorsees of a promissory note, which had been indorsed in blank, against the drawer, it appeared from the declaration, that plaintiffs were merchants and co-partners, trading as a firm, and no right was stated in themselves, other than that designated by the style of the firm, the proof being that another besides plaintiffs was a member of the firm, it was held, that the description of plaintiffs as co-partners, could not be regarded as surplusage, and that the nonjoinder of the other member was fatal.
    2. Had the plaintiffs alleged the right of action to be in themselves, their exclusive right would have been presumed, even although it had been made to appear that the note had once belonged to a firm of which they had been members; the transfer from the firm to them, would prima, facie have been implied from their possession and joining in the suit, just as if the note had been made payable to bearer.
    3. Even then, however, distinct proof that still the note belonged to the firm, would have destroyed their right of action, as it would that of any other person but the true owners.
    
      Tried in the City Court of Charleston, before the Hon. M. King, Recorder, 'November Term, J843.
    Assumpsit — indorsees against drawer of a promissory note.
    This was an action brought against the defendant, on his promissory note, in the names of M. S. Ball and Henry Pray, co-partners, trading under the firm of M. S. Ball and Company. The plaintiffs called a witness, Mr. Nathaniel Tylee, to prove the handwriting of Messrs. P. P. Learned & Co., indorsers of the note. The handwriting of the maker of the note, and the jurisdiction of the court, were admitted. The witness, on his cross-examination, stated he was sure one Morrison was a partner in the firm of M. S. Ball & Co.
    Here the evidence closed ; and the defendant moved for a non-suit, on the ground of the non-joinder of Morrison in the suit. The plaintiffs resisted the motion.
    On the uncontradicted and unexplained evidence before the court, given by the plaintiffs’s witness, it was clear that Morrison is a partner in the firm of M. S. Ball & Co. And it is an established rule of law, that if fewer than the whole number of'persons who ought to join, bring the action, the defendant may take advantage of it on the general issue.' 1 Saund. 291, g. Leglise vs. Champante, 2 Strange, 820. Graham vs. Robertson, 2 Term Reports, 282. In this last case it was held, that the assignees of the bankrupt, Rasthney, must be joined with the solvent partners, to recover the debts due to the firm ; and the same doctrine ■tfvas recognized in Thomason vs. Frere, 10 East, 418. And this is also the law of New York. Dob vs. Halsey, 16 John. 34, 40. It may not readily appear why, as in Rice vs. Shute, 5 Bur. 2611, in assumpsit against one partner, the partnership must be pleaded in abatement, and cannot be given in evidence under the general issue. Perhaps the reason is given by Lord Kenyon, in Anderson vs. Mar tin dale, 1 East. 501. “Where the interest is joint, if several were to bring actions for the same cause, the court would be in doubt to which of them to give judgment.” The rule itself is clear, and whatever doubts may arise as to the validity of the reasons on which it is founded, this court feels bound by it.
    A non-suit was ordered.
    Plaintiffs appealed, and moved to set aside the non-suit granted, and for a new trial, on the folio wing grounds, viz:
    1. Because the note being indorsed in blank, the bona fide holders had a right to sue in their names; the description of themselves, as co-partners, was surplusage, which did not and could not affect their right to sue.
    2. Because the proof, that Lewis Morrison was one of the firm of M. S. Ball & Co., did not preclude M. S. Ball and Henry Pray from styling themselves co-partners, carrying on business under the firm of M. S. Ball Co., having the right in this case to style themselves by whatever name or designation they pleased.
    3. Because the defendant could not inquire who the plaintiffs were, unless for the purpose of shewing that they were in fact the payees and indorsers of the note, in order to let in a defence, if any he had, as drawer, to the action.
    
      Mr. Phillips, for the motion.
    Cited Bailey on Bills, 491. 2 Doug. 636.
    
      
      Mr. Kunhardt, contra.
    Ciied Story on Partnership, 346, sec. 247.
    
      Mr. Phillips, in reply.
    Cited Chitty on Bills, 255, (8 Am. ed.)
   Curia, per

Wardlaw, J.

By examining the declaration in this case, I have ascertained that, after reciting that the defendant was “ attached to answer to M. S. Ball & Henry Pray, merchants, co-partners, trading under the firm of M. S. Ball & Co.,” it proceeds, M. S. Ball & Co. “ complain and allege the indorsement of the note,” “the liability,” “the promise,” and the damage, all to “M. S. Ball <fe Co.” It is impossible, then, that the plaintiffs can prevail upon the ground that the description of themselves as co-partners was surplusage; they have stated no right in themselves, if they be not designated by the style of “ M. S. Ball & Co.;” and if that style properly includes another as well as themselves, the non-joinder of that other is plainly fatal, as the Recorder has shewn.

It is true, that where several persons sue as indorsors of a bill or note, if the indorsement appear to be in blank, it will be held to convey a joint right of action to as many as agree in sueing, and shew their right, by producing the bill or note. 1 Stark. Rep. 446. If these two plaintiffs had, in their suit, alleged the right of action to be in themselves, their exclusive right would have been presumed, even although it had been made to appear that the note had once belonged to a firm of which they and other persons were members ; the transfer from the firm to them would, prima facie, have been implied from their possession and joining in the suit, just as if the note had been made payable to bearer. 6 Moore, 579. Even there, however, distinct proof that still the note belonged to the firm, would have destroyed their right of action, as it would that of any other person but the true owners. 1 Stark. Rep. 499.

As, however, the plaintiffs, by their allegation, claim the right of action to be in M. S. Ball & Co., and their proof has shewn tha,t they alone do not’compose that firm, the non-suit was properly ordered.

The motion is dismissed.

Richardson, O’Neall, Bdtler, Evans and Frost, JJ. concurred.  