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

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action by way of counter-claiin on the part
Of Henniss for the breach OF it. No colln-
ter-claim is made by the answers; or if
attempted, il is done in such an imperfect
and unintelligib'e manner that man Of
common understanding could not see what
was intended. If the defendants wish to
make such defence, ii can only be done
by amendment. Distinctness and precis-
ion, as well as brevity, are essentials Of
good pleading, and no less requisite under
the Revised Statutes. than they were un-
der the common law. To ensure them
was the very object for which sec. rs, p.
339, under which these motions are made,
was introduced into the Statutes. Togive
effect TO its provisions, we must repudiate
such loose and apparently useless state
ments as the one under consideration.
The answer of the defendant Rice, con-
tains averments. that at tie time the notes
were given he placed his name upon them
at the request of Oimsted, relying upon
his representation that Hennss would
obtain the whole or part of the printing
for the then next legislative assembly and
that his mime was placed upon the notes
at the request of Olmsted for his accom-
mediation, "without any design that his
name should have any other than the legal
effect given TO it by its position on said
notes."
These averments contain two PROPOSE
tons: First. that Rice was induced TO
place his name upon the notes by Olms,ed's
representation that Henniss would obtain
The printing. Second, that his name was
placed OH them by the request Of Olmsted
for his accommodation.
The matter of the first proposition is
superHuous. Oms,ed's representations
70 Rice as 10 what would happen in fu-
turc, about which Rice might and was
bound TO exercise his own Judgment, are
immaterial. Ii was mere matter of opin-
ion and expectation, and if the represent
tations have turned out to be false, they
were not therefore fraudulent. Ii he has
unwittingly relied upon prophesies which
have not been fulfilled, he must take the
consequences Of his own folly. II he
wants to set up as defence: that the con-
>ideration OF his Endorsement was an agree
ment between him, or Henniss and Ohm
stcd, which is against public policy, and
not that stated in the complaint, he must
do so by amendment. The averment con-
tanning the first proposition-the state
ment Of the mere inducement which opcr-
atcd on his mind when he indorsed the
noes, must be stricken out as irrelevant
aud redundant.
The case is different with the avcrment
Of the second proposition. The complaint
sets out as the consideration for Ricc's
Endorsement, an agreement between the
parties at the time the notes were given,
that he should become security for Hen
Miss. To that part of the complaint Rice
answers, that he Endorsed the notes for
O'mStcd's accommodation, at his request.
This, though not direct denial OF the
statement in the complaint, is Il statement
Of new affirmative matter mconsisten with
it. 1t should regularly have been prece-
dcd or followed by a traverse or denial Of
the allegation of different consideration
in the complaint; bu, is not therefore re-
dund.nt or irrelevant, allhoug h il is badly
pleaded. Gould's Pl. Title. Traverse,
secs ii and :'5, and note. Whether the
allega' ion that he Endorsed merely for the
accommodation of the payce, coupled as
holder, if true, constitutes good defence
Tor Rice as against the plaintiff: who claims
as indorsee OF the prayee, is a question of
law, proper to be presented TO the court
as an issue of law, hut not on motion to
strike it out, and it is therefore retained
But whether the defendant Rice, can avail
himself OF it on trial before jury, with
out traverse of the statements in the
complaint, is questionable. II. S. $40.
sec. 81; Gould's Pl. 46l, sec. 5. The
words at the end of the averment, which
we have designated by quotation marks,
were probably added by the pleader as a
sort OF traverse, but they make very i'm
perfect one.
living thus disposed of the portions Of
the answers objected to, let an order be
entered in accordance with the forego-
ing conclusions, and also that the defend
ants have twenty days to amend their an
swcrs, if they elect 10 do so; and in case
Of amendment, it would be well to avoid
a defect not before pointed out. running
through a great part of them. DefenceS
and averments are so mixed up and blend
ed, that it is difficult to disentangle and
separate them fron each other. The
statement of each separate defence, should
be entirely distinct, and disconnected
from the rest OF the answer. l trust
may he pardoucd this criticism and sug-
gcsion. thrown out for the benefit of the
profession generally.
AS the questions presented by these
motions are new, and the plaintiff has
succeeded only in part, and has not asked
for costs in his notices, none are granted.
4 Pr. Rep, %; 5, Code Rep. 33; 3 Code
Rep. lao. ]. FULLER.