The plaintiff, Samuel Robb, sues the defendant upon a promissory note payable to S. Robb & Co. The plaintiff’s petition avers that he is trading alone, in Philadelphia, under the name and style of S. Robb § Co. He sues as payee only, and not as endorsee.

The defendant, for answer to the suit, filed an exception stating that he contracted the obligation sued on with S. Robb Co. and not with Samuel Robb, who is unknown to Mm. He also denied that Samuel Robb owned the note, or traded under the name and style of S. Robb fy Co.

The plaintiff offered no evidence but the note sued on, and had judgment. The defendant has appealed.

This is not a case of an alleged nonjoinder or misjoinder of parties, where the defendant excepting is obliged to point out how the error may be corrected. But the objection goes to the right of action upon the note ; it denies that the plaintiff is the payee, or that he is even one of the payees.

It would seem, from the authorities, that the plaintiff, Samuel Robb, should have proved his averment, which was so specially denied, that he alone composed the nominal firm of S. Robb fy Co.

Greenleaf lays down the rule thus : “ where the bill or note is made payable to a firm by the name of A. Co., the payees, in a suit in their own names, must prove that they were the persons who composed the firm.” 2 Greenleaf Ev. $163. This doctrine was recognized as applicable, under similar circumstances, to those presented here, in the case of Ferguson, Administrator, v. King, Curator, 5 An. 642.

It is, therefore, ordered and decreed, that the judgment of the District Court bo avoided and reversed, and the cause remanded for a now trial, the costs of this appeal to bo borne by the plaintiff and appellee.