The opinion of the Court was delivered by
Baylies, J.The defendants on trial before the County Court contended, that there was a variance between the averment in the declaration,' and the indorsement on the note : the averment is, “ that Grant and Seaver indorsed said note, their own proper hand writing being to such in-dorsement subscribed.” Whereas the evidence is, that the indorsement is wholly in the hand writing of Grant. As *250there is no averment in the declaration, that Grant & Seaver were partners, or were acting under a nrm or that name, we are inclined to believe, that the indorsement mac^e by Grant alone, does not prove the averment, “ that Grant & Seaver indorsed said note, their own proper hand writing being to svch indorsement subscribed.” Levy vs. Wilson, 5 Esp. N. P. R. 180; Pease et al vs. Morgan, 7 J. R. 468.
Waller, for plaintiff. Q. Seymour, for defendants.Therefore, it is considered, that the County Court erred in deciding there was no variance, and their judgement must be set aside, and
A new trial granted.