Larry v. Herrick , 58 N.H. 40 ( 1876 )

It is customary and proper, under our practice, for the plaintiff's counsel to state his client's case in various forms in different counts, in order to meet the proof which he may encounter upon the trial. Such statements may be apparently inconsistent, if regarded as a narrative of facts instead of a mere form of pleading. At the trial, one count cannot he adduced as evidence against another; nor can the fact, that evidence was offered at one time to sustain such count, be regarded as an admission by the party, on a subsequent trial of the same causes that the facts as charged in such count are true, and that therefore he cannot proceed to trial on a different count. The exclusion of the inconsistent counts as evidence is by force of an absolute rule of law, founded upon the policy of allowing a plaintiff, in his declaration, to state his case in inconsistent forms. Cilley v. Jenness, 2 N.H. 87; Chapman v. Sloan, 2 N.H. 467; Bump v. Smith, 11 N.H. 48; Kimball v. Bellows, 13 N.H. 58; Buzzell v. Snell,25 N.H. 474; Hall v. Clement, 41 N.H. 168; Keeler v. Bartine, 12 Wend. 110; Hughes v. Moore, 7 Cranch 176; 1 Stark. Ev. 295; Gould's Pl. 432.

The verdict must be set aside, and

A new trial granted.