Moore v. Stevens

42 N.H. 404

Opinion

Bellows, J.

The pleadings make an issue upon the property of the plaintiffs, and to disprove it the defendant may show property in a third person not named in his avowry. Brown v. Webster, 4 N. H. 500. The burden is upon the plaintiffs to show property in them. Taylor v. True, 27 N. H. 221; Belknap v. Wendell, 21 N. H. 175. In this case the plaintiffs sue as partners, and allege the goods to be their property, and of course in their partnership capacity. A plea to the avowry alleging the property to be jointly in Joseph C. and William Moore, but not as partners, does not maintain the declaration. There is a substantial departure, because not only is different proof required, but it may make a material difference as to the rights of attaching creditors. Here the plaintiffs plead that the property was not solely in William Moore, but in him and in Joseph C. Moore, jointly, as is by them in the plaintiffs’ declaration alleged. Unless, then, this can be regarded as an allegation that they held it as partners, the plea is bad as a departure.

It is contended by the plaintiffs’ counsel that the allegation of a joint ownership is equivalent to alleging that they owned it as partners, upon the ground that partners are joint owners. But we think this position is not tenable ; for it is quite clear that parties may be joint tenants of a chattel and yet not hold it as pai’tners, and the difference between them is quite material. In the one case there is survivorship, and in the other not; and in one the creditors of the partners have a preference, and in the other not.

Nor do we think that the phrase “ as by the said plaintiffs’ declaration alleged” will change the construction of the plea ; for it can not qualify a distinct allegation of joint ownership. Neither does the plaintiffs’ counsel contend that it does. Such a defect being bad upon general demurrer (1 Ch. Pl. 648, and note 1), there must be

Judgment for the defendant.