1. The suit is upon a pro-note which is executed by the 1st defendant in his name. The 2nd defendant is sought to be made liable on the ground that he was a partner with the 1st defendant and that the debt was borrowed for the purpose of the partnership. The District Judge has given a decree against both the defendants. But we are unable to agree with him as regards the liability of the 2nd defendant. It is a well known rule of law that in the case of a negotiable instrument, the signature of one person in his own name cannot justify a decree against another person although the debt might have been borrowed for the benefit of both or although both the persons might have been trading in partnership and the debt was borrowed for the purpose of the partnership. The decisions to which our attention has been drawn by Mr. Rosario - Somasundaram v. Krishnamurthi (1907) 17 M.L.J. 126 and Subba Narayana Vathiar v. Ramasami Iyer I. L. R. (1906) M. 88 - are clear authorities in support of this position.
2. Mr. Varadachariar for the 1st and 2nd respondents does not dispute the correctness of this proposition. He argues that the signature at the foot of the pro-note is the firm name and that the 2nd defendant is also included as he is represented by the firm name. We do not think there is any warrant for this view. The plaint proceeds on the basis that the executant of the note was only the 1st defendant, and the 2nd defendant is sought to be made liable merely on the ground that he was a partner, and as such answer able for the debt. Mr. Varadachariar invites our attention to the description of the 1st defendant in the cause title. The 1st defendant is no doubt there referred to as trading under the name and style of Mukkakasbrath and Pallikutti, which is also the name of the 1st defendant. But there is no allegation in the body of the plaint that the two defendants are trading under this name as their firm, nor does the Cause title say that the 2nd defendant is trading under that name along with the 1st defendant. Mr. Varadachariar says that in the evidence of the witness there is a reference to the fact that the trade is carried on in the 1st defendant's name as the firm name. But we do not think we should be allowed to rely upon any of the statements which might casually have been made in the course of the evidence. We must disallow this contention on the ground that the plaint itself is not based upon any such view. Looking at the document itself (Exhibit A), it is perfectly plain that it speaks in the singular number, and that is, to our minds, an indication that it was not intended that the firm name should be subscribed to it. Mr. Varadachariar next contends that we should treat the plaint as also claiming relief against the 2nd defendant on the footing of the original debt. We are unable to do so. The cause of action is given as arising on the 5th May 1906 which is the date fixed for payment under the pro-note dated 5th May 1905. Again, the rate of interest which is claimed is what is specified in the pro-note. If it was the original debt which was sued for, prima facie it would be barred by time and the plaintiff would be bound to state how he takes the case out of the statute of limitation which he has not attempted to do. All these things are, to our minds, sufficient to show that the suit is one based purely on the pro-note. We must, therefore, overrule this second contention also. We modify the decree of the lower court by dismissing the suit against the 2nd defendant with costs throughout.