
    Charles Rogers & al. vs. Samuel D. Reed.
    Two or more persons who are not partners, may take a note payable to themselves by their surnames only, which will be good evidence of a debt, upon sufficient proof of identity. And to establish the identity, it is not necessary to prove that they were partners at the time of the date of the note.
    Exceptions from the Middle District Court, Redington J. presiding.
    Assumpsit on a note of which a copy follows.
    
      “Bath, Oct. 31, 1833. Twelvemonths afterdate, I promise to pay Messrs. Rogers ^ Cutler and George W. Drinkwater, or order, one hundred twelve dollars, for value received of Eveline Rogers. S. D. Reed.”
    
    
      The note was wholly in the handwriting of Reed, and was given to Eveline Rogers, to be by her transferred to the payees in payment of debts due them. They refused to accept the note, but permitted her to proceed with it in their names.
    In the writ, the defendant was summoned “to answer unto George L. Drinkwater and Charles Rogers, Jr. both of Portland in the county of Cumberland, merchants, and Samuel Cutler of Boston, &c. in a plea of the case, for that the said Reed, at, &c., on, &c., by his note under his hand of that date, for value received, promised to pay to the said Drinkwater, by the name of George TP. Drinkwater, and to said Rogers and Cutler or order, the sum of, &c.”
    In the course of the trial the counsel for the defendant objected, that the note being payable to Messrs. Rogers &f Cutler and George W. Drinkwater, did not support the declaration, and that it did not appear that the three plaintiffs were the persons to whom the note was made payable. Thereupon the plaintiff offered testimony tending to prove “ that by the name George W. Drinkwater, mentioned in the note, was meant George L. Drinkwater, and that the plaintiffs, Charles Rogers, Jr. and Samuel Cutler, at the time of giving the note, were merchants residing in Portland, and there doing business under the firm and style of Rogers &/• Cutler.”
    The counsel for the plaintiff requested the Judge to instruct the jury, that if they were.satisfied that the defendant signed the note, and that the body of it was in his handwriting, that in the absence of all opposing proof, it was sufficient evidence of a recognition by said defendant of said plaintiffs as a firm, as to supersede the necessity of any further proof on their part, of the existence of such firm at the time of the date of said note.
    The Judge instructed the jury, that it was incumbent on the plaintiffs to prove that these were the persons to whom the note was made .payable under the name of Cutler &f Rogers and George W. Drinkwater; that the existence of the firm of Cutler &f Rogers in January, 1833, was not of itself sufficient evidence; that they might however consider the testimony of Mr. Clapp, of the conversation which he heard between the defendant and Eveline Rogers in June, 1838; that as she spoke of thé firm as being in existence when she offered them the note, which must of course be subsequent toils date; and as the defendant did not object to the existence of such firm, the jury might infer, if they thought proper, from that and the other evidence in the case, that the firm existed at the date of the note, in which case they would find for the plaintiff; but otherwise for the defendant. The verdict was for the defendant, and the plaintiffs filed exceptions.
    
      F. Allen, for the plaintiffs,
    said there was no question as to variation between declaration and proof; that there was no allegation, that the plaintiffs, or any of them, were partners; and that the evidence in relation to the partnership of Rogers Cutler, was merely to show their full names, and prove their identity. The instruction of the Judge, therefore, that the plaintiffs must prove the existence of a partnership, when the note was given, was erroneous. Had the note been made to C. Rogers, Sf Co. instead of Rogers Cutler, the instructions might have been proper.
    
      Groton, for the defendant,
    contended, that the instruction of the Judge was right, and that it was a mere question of weight of evidence, of which the jury were the sole judges. If there was a firm of Rogers &f Cutler at one time, of which the plaintiffs were members, it is not proof that the same firm existed, and was composed of the same persons long afterwards, when the note was given.
   The opinion of the Court was by

Weston C. J.

Rogers and Cutler, two of the plaintiffs, do not declare as partners, although they are named in the note in a manner, which usually indicates the existence of affirm. It appears that they had been partners, so as to leave no question of the identity of the persons intended. This being established, it was not necessary to prove the continuance of the partnership up to the time of the date of the note. Two or more persons, who are not partners may take a note payable to them by their surnames only, which will be good evidence of a debt upon sufficient proof of identity. We are of opinion therefore, that the plaintiff was not bound to prove, as the jury were instructed, that Rogers and Cutler were partners, at the time of the date of the note.

Exceptions sustained.  