
    Supreme Court of Errors and Appeals. Nashville.
    1814.
    HYMAN GRATZ & CO. v. STUMP.
    } Appeal.
    By 1789, 57, 5 (Code 2789), all joint obligations and assumptions are made joint and several, and the law has been long settled, that on a several obligation, executed by two or more, the obligee may sue any one, without noticing the others.
    A note signed in the firm name of 0. Stump & Co. may be given in evidence under a declaration in debt against C. Stump alone without noticing the other members of the firm.
    This was an action of debt brought by the appellants against the appellee in the Circuit Court of Davidson County. The declaration contained one count upon a note of hand, in which it was alleged that “ the said Christopher Stump, by the name of C. Stump, on the twenty-second day of September, 1807, at Philadelphia, to wit: in the county aforesaid, by his certain note in writing, commonly called a promissory note, bearing date the same day above, with the name and handwriting of said Stump thereto subscribed promised,” &c.
    The defendant pleaded nil debit, and upon the trial objected to the note produced by the appellants being given in evidence to the jury ; because, the note produced was signed C. Stump & Co. The note is in the following words: —
    “September 22, 1807, ninety days after date we promise to pay to the order of Hyman Gratz, & Co., without defalcation, five hundred and eighteen dollars and seventy-eight cents, value received.
    C. Stump & Co.”
    The firm of C. Stump & Co. was proved to be composed of Christopher Stump, Exum Johnson, and John Stump; and it also appeared that the goods for which the note was given were purchased for the firm.
    The Circuit Court refused to permit the note to be given in evidence to the jury, to which opinion the appellants took a bill of exceptions, and thereupon appealed to this Court.
    
      Beck and Whiteside, for the appellants,
    argued that by the statute of this State, 1 Hay. Rev. 175, § 5, any one of the partners, upon a promise made in writing by the firm, could be sued alone. That was the mode which the appellants had pursued in this case; and by electing, as they had a right to do, to consider Christopher Stump liable as upon a several undertaking, no sort of necessity devolved upon them to set out the note as having been signed by the firm. Indeed, it is very questionable whether it would not be error to do so. 1 Str. 76.
    Dickinson, for the appellee,
    urged that although Christopher Stump was liable, separately, upon the note executed to the appellants, yet, in declaring against him, it was incumbent on the appellants to set out the note truly. If they fail to do this, and still recover, they may hereafter commence another suit against the whole firm, and the recovery against Christopher Stump could not be plead in bar, because it would not appear to be for the same cause of action.
   OveRton, J.

delivered the following opinion of the Court: —

This was an action of debt. The plaintiffs declared against the defendant, as on a note signed by C. Stump, without noticing in the declaration that the note was signed by C. Stump thus, “ C. Stump & Co.” In evidence, the plaintiffs produced a note signed “ C. Stump & Co.” This evidence was objected to in the Court below; the objection was sustained by the Circuit Court, and the evidence excluded.

Exception was taken to that opinion; and the only question is, whether it was correct.

As the law stood, at the time this note was given and action brought, all joint obligations and assumptions were made by statute, joint and several. The Court understands the law to be long settled, that on a several obligation, executed or given by two or more, the obligee or payee may sue any one, without taking any notice of the others, either in the writ or declaration.

The evidence was proper, and therefore the judgment must be reversed and the cause remanded for another trial, when the note is to be read in evidence, on its execution being proved. See 1 Strange, 7 6.  