Schroeder v. Turner

Alvey, C. J., delivered the opinion of the Court.- It does not appear upon what, ground the Court below quashed the attachment; but from the evidence in the record it is made quite clear that there was, in fact, no partnership existing, at the date of the notes sued on, between Joseph E. Herbert and John Dohme, and that the plaintiff did not deal with Herbert as representing' a. partnership ; and, therefore, it could not have been upon the ground that Dohme was not joined as a party to the action, that the attachment was quashed. The note's sued upon were dated the'20th of Nov., 1884, and the 16th of Dec., 1884, payable four and six months-after date, signed by Joseph E. Herbert as Herbert & Co., and which notes were indorsed on the back by, and with the name simply of, Mrs. Ella Herbert, sbe being the wife-of Joseph E. Herbert, the maker of the notes. It is conceded that at the time the notes were made and before they were delivered to the payee, they were indorsed by Mrs. Herbert, and therefore she is to be treated as a joint maker of the notes, within the principle of Ives vs. Bosley, 35 Md., 262 . It is contended, however, that because it is alleged in the affidavit for the attachment, and in the declaration filed, that Joseph E. Herbert and Ella his wife were indebted to the plaintiff, and as evidence of such indebted ⁵⁰⁹ ness Hie plaintiff has exhibited the promissory notes, signed “Herbert & Co.,” therefore there is a fatal variance between the averment of indebtedness, as set out in the affidavit and declaration, and the evidence of the indebtedness exhibited; namely, the notes signed “Herbert & Co.,” with the indorsement of the name of the wife on the back.

But we do