Aaron Jewett, Junior versus Nathan Davis, 6 N.H. 518

Richardson, C. J. delivered the opinion of the court. It is objected, that there is error in the judgment of the court below, because judgment was rendered for the1 plaintiff to recover his damages, instead of a judgment of respondeat ouster. But in this respect the judgment was correct. It was so settled in the case of Dodge v. Morse, 3 N. H. Rep. 232. It is also contended, that the court below improperly ruled that the burthen of proof was, as the pleadings stood, upon the defendant.

Whether this objection, if well founded, would constitute a legal ground for reversing the judgment we shall not stop to enquire, because we are of opinion, with the Common Picas, that the bur-then of proof was upon the defendant. There seems to have been some diversity of opinion among judges, upon this point, but we think, on the whole, the better opinion is, that, in such a case, the burthen of proof is upon the defendant. 2 Starkie’s N. P. C. 555, Roby v. Howard; 1 ditto, 296, Pasmore v. Bousfield; 1 Esp. N. P. C. 103, Young v. Bairner; 2 Starkie’s Ev. 2; 3, Starkie’s N. P. C. 8, Stansfield v. Levy.

It is further contended, that the testimony of the alleged joint promisor was improperly rejected. But we think otherwise. He was properly excluded, on the ground of interest, as liable to contribute to the payment of the costs of the suit, in case the plaintiff succeeded, if on no other ground. Peake’s N. P. C. 174, Goodacre v. Breame; 2 Starkie’s Ev. 5; 1 Espin. N. P. C. 103, Young v. Bairner; 6, Bingham, 181, Hall v. Cecil. In all cases where a joint promisor has been admitted as a witness for the defendant, he has had a release. 3 N. H. Rep. 115; 5 ditto, 199; 1 Pickering, 121, Gibbs v. Bryant.

Another ground for reversing the judgment, taken by the plaintiff in error, is, that the verdict is imperfect; and we are of opinion that the verdict is insufficient to sustain the judgment. The question involved in the issue, was, whether the Jewetts promised jointly ; and the verdict contains no answer to this question, either directly or indirectly. For, although they may have not been partners, still they may have promised jointly. If the issue joined had involved the question merely, whether the two Jewetts promised as partners, the verdict might perhaps have been deemed sufficient.

Bat that question is not involved in the issue. No court would be warranted in construing the allegation, that they were partners and promised jointly, as an allegation that they promised as partners. The rule is, that if the point on which the verdict is given, be so uncertain that it cannot be clearly ascertained whether the jury meant to find the issue or not, it cannot be helped by intendment. 1 Mason, 170; Com. Dig. “Pleader,” S. 32; 11 Pick. 45; 3 ditto, 124. Judgment reversed.