18 N.H. 230 | Superior Court of New Hampshire | 1846
Here is no variance. It does not appear that the declaration alleged a promise by any particular name. The description of the defendants, as partners under a particular name or firm, in the writ, is not an averment that they promised under that name. Proof of a promise by another name, therefore, is not a variance. It appears from the evidence that they acted under that firm, but they may also have used other names, and be liable in this ease.
The coverture of Mrs. Jewett at the time of making the promise may be given in evidence, under the general issue, to defeat the action.
It is not sufficient to raise a presumption of death, merely to show that the party has been absent from the State for the term of seven years. That raises no reasonable inference of death. Coupled with evidence from some of the connections or friends who would be likely to know whether he was living, that he had not been heard of for the term of seven years, it does raise a presumption of death. 11 N. H. Rep. 191, Smith v. Knowlton. If the plaintiff had objected that the evidence on the part of the defendant was insufficient to raise a presumption of the death of the husband, the exception would have been well taken. But if objection had been made in that form, the defendant might have introduced other evidence. Instead of this, the plaintiff undertook to prove affirmatively that the husband was alive, and rested his case upon insufficient testimony. The letter ought to have been produced and verified. Its date was material, and that would best appear from the letter itself; and the defendant was entitled to an opportunity to' inspect' the letter, and to give evidence, if he might, that it was npt the hand writing of the husband.
Verdict set aside.
