Stone v. De Puga

concurring.) — The rule of plead*682ing, in actions for- a legal remedy, is the same as formerly in this, that facts,-and not the evidence of facts, must be pleaded. This suit is brought to charge JDe Puga as a dormant partner, doing business under the style and firm of “ A. B. Tripler.” The objection to this portion of the complaint is, that the matters stated are evidence to prove him to be such general partner. He is thus called upon to answer on oath these matters of evidence, and is thereby compelled to make a discovery in his answer, which under the code the plaintiff has no right to demand.

We think the regular and proper course was for the plaintiff to charge De Puga in the complaint as a general partner. In his answer' he will set up the special partnership, and the plaintiff may then reply 'the facts on which he relies to show that he was not a special, but a general partner.

Motion granted.

By the Court,