Blanchard

— This action is brought against some thirty defendants averred to be partners, 'jointly engaged in the construction of a certain wagon road under the firm name and style of the Amador and Nevada Wagon Road Company. It is charged that the defendants, by their firm nam.e, through the agency of three of said partners, to wit: Kaull, Nikolaus and Tullock, who were duly authorized to act for and in the name of the partnership, executed and delivered the notes sued upon, all of which are in substantially the same language. One of said notes is as follows:

It is also averred that the notes were secured by mortgage, which is also sought to be foreclosed in this action. • The mortgage is set out in full and purports to have been executed by the Amador and Nevada Wagon Road Company, a corporation duly incorporated, party of the first part. In no other way does the complaint show that the defendants are members of an incorporated company. The answer avers that the Amador and Nevada Wagon Road Company is an incorporated company, and that the notes and mortgage mentioned were executed by that corporation, and not by the defendants in their individual capacities.

On the trial no partnership…