
    Roseborough v. Gorman.
    Where a note being payable to two was indorsed by one in blank, and the plaintiff alleged that he was the owner, holder, and assignee of the note: Held, That the allegation was not sufficient to authorize the introduction of parol evidence to prove that the second payee had relinquished his right in the note to the first before the indorsement.
    Appeal from Harrison. This suit was brought on several promissory notes. The petition set out one of them as follows :
    “ Twelve months after date I promise to pay A. Sears and J. Bright, or order, the sum of three hundred dollars, for value received. 10th December, 1843.
    (Signed) “James Roseborougi-i.”
    It was averred in the petition that plaintiff “ became the owner and holder and assignee of the last-mentioned promissory note, of which defendant liad notice.” It appeared from a bill of exceptions and the statement of facts that when the above note was offered in evidence it was indorsed “ Jesse Bright.” The defendant objected to its being read. A. Sears was called as a witness, and testified that lie had relinquished his right in the note to J. Bright, whose name was Jesse. The court overruled defendant’s objection to the evidence, and there was a verdict and judgment for the plaintiff, from which the defendant appealed.
    Hall, for appellant.
    I. Defendants below objected to the introduction of the note as evidence, and it is contended that the court erred in admitting it in evidence. A. Scars and J. Bright wore not partners, and the law is believed to he that such a note cannot be transferred by one of the payees alone, and that therefore the plaintiff below could not maintain an action thereon. (1 Selw., N. P., 849; Smith v. Whiting. 4 Mass. R., 334; Story on Bills, sec. 197.)
    II. Had such evidence been proper it could not have been admitted under the state of the pleadings. (Sanford v. Mickles, 4 Johns R., 227.)
    (7. if. Adams and S. M. Hyde, for appellee.
    There could have been no errar in admitting the note. The petition avers that plaintiff’s intestate ivas the holder and owner of said note in his lifetime. This averment is sustained by the testimony of Sears, who testifies that he had relinquished his interest in said note to Bright, who transferred tiie same to the intestate. There was no error in permitting Sears to testify in the cause. Ilis evidence went to establish a material averment in the petition — that of ownership in (he petitioner. He was, if interested at all, testifying against his own interest — the effect of his evidence being to establish title in another to that in which lie had liad a joint interest. He says he had released liis interest in the note to Bright. Appellee suggests this appeal is for delay, and prays damages.
   Lipscomb, J.

That the indorsement did not of itself amount to a transfer, so as to enable the plaintiff to sue on the note in his own name, is well settled. (Story on Prom. Notes, sec. 125; 4 Johns. R., 227.) If the other payee had, previously to the indorsement made by Bright, his co-payee, relinquished his interest to him, so that the whole interest was in him when ,he indorsed the note to the plaintiff, this fact not appearing on the note the plaintiff should have alleged it in ills petition. In the absence of such allegation it could not be received in evidence, because snob evidence did not conform to the allegations contained in the petition.

We have repeatedly declared that one of the most essential and peculiar advantages of our system of practice consisted in the rule that the allegata and probata must agree, without regard to inferences and presumptions tolerated under the common-law pleading. We would hold a relaxation or departure from this rule as a most dangerous encroachment on our system, and if permitted to go unreversed would become a precedent for further encroachments, and might terminate in the gradual introduction of much of the fiction of the common-law declaration and pleading that was obviously intended to be repudiated and avoided by the organization of our system of jurisprudence.

The court erred'in admitting the evidence objected to, and for this error the judgment must be reversed and the cause remanded.

Judgment reversed.  