¶1This was an action of assumpsit, brought in 1836 by Cunningham Ramsay and John Vattier against the defendant, on a promissory note. The declaration states *346that the note is payable to the plaintiffs by the name of Ramsay and Vattier; that the payees, by the name of Ramsay and Vattier, assigned the note to the plaintiffs; that the note is unpaid, &c. Plea, non assumpsit. The plaintiffs, on the trial, offered in evidence a note executed by the defendant, and payable, on its face, to Ramsay and Vattier. It was indorsed by the name of Ramsay and Vattier to the plaintiffs; and it agreed as to date, sum, &c. with the note described in the declaration. The defendant objected to the note as evidence, and the objection was sustained. Verdict and judgment, at the November term, 1838, for the defendant.
¶2The statement in the declaration as to the assignment of the note by the payees to themselves, is mere surplusage.
¶3The plaintiffs must be considered as suing in the character of payees, and averring that the note is payable to them by the names of Ramsay and Vattier.
¶4There is no variance, therefore, as. to the names of the payees, between the note offered in evidence and that described in the declaration. Indeed, had the words in the declaration, “by the name of Ramsay and Vattier,” been omitted, there would still have been, no variance as to the names of the payees, as Ramsay and Vattier are the surnames of the plaintiffs.
¶5The indorsement on the note by the payees to themselves is a nullity.
¶6We are of opinion further, that the plaintiffs’ possession of this note, payable as shown by its face to Ramsay and Vat-tier, is sufficient evidence, prima facie, that the plaintiffs' are the persons to .whom the note is payable. Taylor v. Coquillard, May term, 1839.
¶7The case now before us is distinguishable from that .of Fraser v. Spofford et al., Nov. term, 1839. In that case, there was nothing on the face of the note tending to show that Kimball, one of the plaintiffs, was one of the payees of the note.
¶8The judgment is reversed, and the proceedings subsequent to the verdict inclusive set aside, with costs. Cause remanded, &c.