5 Ark. 661 | Ark. | 1844
By the court,
The facts being admitted by the demurrer as stated in the declartion, does the plaintiS show himself entitled to recover? The general principle in pleading is, that the declaration must set forth a title in the plaintiffs to the thing sued for$ ’and if no title is shown, the defect is fatal at every stage of the proceeding. The plaintiff declares as “surviving partner of E. Y. Baker,” and the promissory note is payable Jo Edward Y. Baker & Co. There is no averment of the identity of the payees with the plaintiff and his deceased partner, and this connection is necessary to establish the legal title by survivorship in the plaintiff. This should be positively and directly avered and not left to inference. The facts may all be true, and yet the plaintiff have no cause of action. Upon this ground the court erred in overruling the demurrer. There is no variance between the note stated in the declaration and that exhibited on oyer. The declaration is silent as to the date, but alleges that it was made on the 2d December, and this is the date ■of the note. It was no variance-, if anything, it was a defect in the 'declaration; but if it was, the defect was not set down as cause of de-TOurrer, and is consequently cured. But forj the cause above stated, the judgment mustfbe reversed, the,'cause remanded, with instructions, &c.
