Ledden v. Colby

14 N.H. 33

Opinion

Parker, C. J.

It appears to be clear from the authorities, that in a suit by a surviving partner, to recover a debt due the partnership, he need not aver in the declaration the death of his late partner; 5 Esp. R. 31, Ditchburn vs. Spracklin; 2 Johns. Cases 374, Bernard vs. Willcox; though it is more usual to do so. 1 Chitty’s Pl. 12. There is, however, no ground to say that because the averment is omitted, it is not necessary to prove the fact; for though the action may be well brought without alleging the death, unless on trial there be evidence of the death presented, there would be a manifest variance between the declaration and the proof. 1 Chitty’s Pl. 6; 1 Saund. R. 154, note, (b.)

There are some facts, it is true, which must be proved if averred, but which yet need not be proved, if not averred. But the mere making an averment of a fact necessary to be proved to establish a case, can never take the place of that proof. There would be a variance, had the plaintiff not alleged the death of his partner. How can there be less a variance because he has alleged it ?

Perhaps the allegation of the plaintiff might have been specially traversed by the defendant; 1 Saund. R. 154, note (1); but he was not obliged to take that course. The general issue puts all matters in issue, and the plaintiff must make out at least a prima facie case on his declaration. 1 Chitty’s Pl. 477; 2 Starkie Ev. 140, note (u) & 463, 464. This he by no means does when, as in the present instance, he styles himself a surviving partner, and shews a judgment in favor of himself and another, which other must be presumed alive until the contrary be shewn. On these grounds we must set the verdict aside and order a

New trial.