The Minnesotian. [volume] (St. Paul, Minn. Territory) 1851-1852, 1851-12-27

tie then next session of the legislature,
WAS obtained for. allotted TO, or done at
the office OF the Minnesota Chronicle and
Register. add, ''that consequently the said
Charles ]. Henniss has never received any
money wherewith 10 pay the said notes,
rom the source whence it was understood
that they should be paid" This addition
is not direct and positive statement of
mlt'er constituting defence, or part of a
defence. in ordinary, plain and concise
language, but OF all inference from or Sc
qucucc of a former statement. And what
the plea'ler means by the expression, 1.-The
source whence it was understood that they
should be paid,'' is little uncertain. Ii
may refer to an understanding deducible
from the notes, or 10 parol agreement
male at the time they were given, which
could not be set up against, or to vary the
notes, and would therefore be immaterial.
The whole statement is an example of I'M
certain and iuartificial Pleading. Had the
plain if averrcd in lis complaint that Hem
Miss had received the amount specified in
the notes for printing done for the next
legislature after their date, the defendants,
besides setting up Il iai'ur Of considcra-
ton in not receiving the printing, might
have ,raversed aud taken issue upon such
averment in the complaint, that HenniSS
had received pay for doing it. But as it
is, an averment that he has received no
nancy from that source, is not rcspon-
>ive to any alicg ltion in the complaint, and
can raise no issue OF fact on any statement
in it. l. the noes are not payable unless
or uuil he has received the money to pay
them from the public printing. then tie
compliant WAS demurrabIc Tor not stating
that he had so received it when The action
was commerc.d. The defendants cannot
waive demurrer and present the CUES
ton us an issue OF law to the court, by u
statement in tie answers that he has not
received it. Perhaps the plaintiff might
take an issue upon such Il statement, by a
replication ore feaus at the trial, which is
the ON y III ,dc Of replying contemplated by
the Revised Statutes. cXccptto a counter
claim. r. S. 1913, secs. 20, |, Id. 352, sec.
3; and thus cure the want in the com
plant of the affirmative allegation, which
it neg tives, il that want is u defect, and
thercupon be allowed to introduce atiirma-
tive proof Of what was left out OF the COM
plant. But the defendants cannot thus
compe! him to present that issue to jury
when he does not deem it material. Ii
the defendants deem it material, and the
plain iii has Il verdict, they must move in
arrest Of u lgment. AS the plaintiff elects
TO have the matter in question stricken
ont, an it is clearly re lundant for all pur-
poses o! defence, it IS proper to expungc
it as such from the answers.
The answers contain long rccitals, SCI
ting forth that Ovid O.msted, the payec
Of The noieS, was at their date Il member
e'ec, Of the legislative assembly Of the then
next territorial legislature, and his duty
as such, and detailing, along with others
wholly immrterial. some facts and circum-
STANCES, which, ii given in evidence, might
ten 10 show 'hat part OF the consdera-
ton Of the notes was an agreement OF Ohm
sted, contrary to public policy, to vote t.
give the public printing to H.nniSs. The
moion 10 strike ont all that part of the
answers must also lie granted. The ma
teriai facts Constituting IA defence, should
be set forth, and not the evidence of thc.u
I'm wv cs VS. Gee. Pr. Rep. 322; Pr.
Rep. 34S; Id. So; Id. ll9; 5 Id. 473, 3
code Rep. 1888; Voorhees, Pr. ll2-llS;
Chi,,y's Pl. 225. II material facts are
set forth, the evidence of them is rcd,,n-
dant. Ii they are omitted, and only the
evidence tending to prove them inserted,
then there are no material allegations for
he evidence to support, and It's Insertion
is certainly superluous and irrelevant
That is the case with the recitals in ques-
tinn. AMI it is no objection to striking
them ont, Il a it will strip the answers OF
The defence they were intende TO intro
fnce. D,llncr VS. Gibson, 3 cole Rep
l]3. Ii they contain any ma erial allcga-
tivns. these are 50 CONNECTED with the i'm
ma eril that they cinnot be separa' ed. and
the whole may therefore be stricken out
together. Hofman's Masters Pr. 3l6.
OF the same character are the state
mcn.s in the answers, that O.msted urged
IIenniss not 10 form a connection with
Goodhne. and promised The public print
ing to him ii he would not that Henmiss
comp tel with this request, and thereby
h schanc d obi in;ngi, were diminished,
i ii W. not wholly los, no, wi'hsr anding
he NAL, every honorable effort to ob'ain
il. The noes ii moi binsl Henniss to
form a connection Wi Goodhuc, in order
TO obtain the public printing, tina, he might
ply them ont of the proceeds. There is
nothing 10 show that this matter formed
part Of the consideration Of the notes, or
ha | any thing to do with them. 1t ap-
pears 10 have been merely conversation
between the parties at some time not STA
ted. As sc, forth. il does not show any
agreement between them, but merely IA
request on one side, and compliance with
ii ON The other, and the consequences Of