
    A. Kennedy, survivor of others, v. James Richey.
    The process set out: “The petition of Archibald Kennedy, survivor of James Foster and Jane Faltón, who, together with the said Archibald Kennedy, lately did a mercantile business, under the firm of A. Kennedy & Co., &c:” the proof Was, that no such persons as Foster and Patton were in existence at the date of the note: Held, that all that part of the description beginning with “survivor of,” might be rejected as surplusage, and was not such a variance as would sustain a motion for non-suit.
    Tried before Mr. Justice Evans, at Abbeville, Fall Term, 1846.
    This was a summary process on two notes, which had been given by defendant to “A. Kennedy & Co., or bearer.” The proof was lhat these notes were given to Kennedy after the death ofhis copartners, but for a debt previously due the firm. The process set out: “the petition of A. Kennedy, survivor of, &c;’* and objection was made to the plaintiff's recovery on account of the variance between the allegata and probata. His Honor, the presiding Judge, was of opinion that all that part of the description which set out that Kennedy was “the survivor &c.” might be rejected as surplusage, and refused the motion for a non-suit.
    The defendant appealed; and now renewed his motion for a non-suit, on the ground taken below.
    Jones, for the motion,
    cited, 9 East, 160; 1 Starkie, 411; 2 Bay, 543.
    M’Gowan, contra,
    
    cited, Harper, 486. 2 Bailey, 137.
   Evans J.

delivered the opinion of the Court.

The note in this case w?as given for a debt due by Richey to the firm of A. Kennedy & Co., during the lifetime of the other copartners, Foster and Patton. But as they were dead, the words, & Co., have no signification, and might be rejected as surplusage, as was done in the case of M’Cool v. M’Cluney, Harp. 486, and then the note would be payable to A. Kennedy alone, in whose name the action is brought. What follows the plaintiff’s name, that he was the survivor of James Foster and Jane Patton, and that he with them carried on a mercantile business, was a mere explanation of the manner in which the debt had accrued. His right of action did not depend upon it, and it was unnecessary to state it. But if one make an unnecessary allegation in stating his case, the only effect which can result from it, is, that he may be bound to prove the allegation, and this was done.

The motion is dismissed.  