Pogue v. Clark

Walker, J. It is urged that there is a material variance between the notes described in the declarations, and those read in evidence on the trial. The count in the first case describes the instrument sued upon as the joint note of the makers, and so of the first count of the other case, while in the second count of the latter, it is only averred that they by the note promised to pay the money. The notes when produced were joint and several. There can be no question but these were joint notes, and they were also in terms several. According to their legal effect, the makers were jointly liable for their payment, and the fact that they were also several, made them none the less joint promises. In an action against one of the makers of a joint and several note, the describing it as the several note of the maker who was sued, without in any way noticing the other parties, has been held to be no variance. Chitty on Bills, 562, and authorities there cited. On the same principle, the converse of the proposition must be true. ' In each of these cases, the declaration and praecipe were filed, and summonses issued on the 19th day of March, 1860. The note sued upon in one of these cases matured ón the 9th day of March, 1859, and in the other, on the same day of March, 1860. In the one case one year and ten, and in the other ten days before suit was instituted. Thus it will be observed, that even if promissory notes are entitled to days of grace, which we think from former decisions of this court they are not, this record clearly fails to present that question. And we deem its discussion unnecessary in these cases. The judgments of the court below are affirmed. Judgments affirmed.