The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1858-12-02

we present oeioW au lnportant Ccce'oh
by Judge PALMER, Of this Judicial District
on question of the utmost Importance TO
the business men throughout the State. 1t
was in the case Of PuiLir GsLDsNiTn rs,
CHARLES T. RICE ct al.
The complaint in the action was upon
promissory note OF $1,000, conditional TO
draw interest after maturity, al the rate OF
three per cent pr month. The note was
set out in terms
The defendant interposed demurrer TO
SO much of the complaint rs sought TO RI.
cover three per cent per month after ma'u-
rity.
Ii was objected tina, demurrer was not
the proper mode Of raising the questions
contemplated, but was also argued upon its
merits.
VIZ. HoLlLssnsAp, Esq, in support OF
the demurrer and BRIsBiS Il BIGEI.ow, OPP.
posed.
The decision Of the Court is ms follows:
The demurrer TO the complaint in this action
must be overrued. As to the first ground OF
demurrer, that said complaint does not state
whether any proceedings have been had nj law
for the recovery OF the debt secured, II is suf-
icent to observe, that il any SUIT At law had
been commenced, II is matter OF defence 10 be
shown by answer. The remaining grounds OF
demurrer relate TO what is popularity called the
E" five per cent question: and merit more
extended notice. First AS to bringing the
question 10 the notice Of the Court. Upon
careful examination Of our Statute, am clear
that IL cannot be raised either by answer or de-
muirer To sustain an answer some material
allegation OF the complaint must be controvert
cd, or some new matter introduced which Is
supposed to constitute u defence. The usual
answer TO u complaint on promlssory note Of
this character, is simply and markedly, that the
clause in said note as TO interest after maturity
is penalty and was 30 intended by the par
ties. This, however, IN merely calling on the
Court TO determine the legal effect OF the clause
~ II stands In the complaint and II question
Of law only 1t seems equally clear that il can.
not be raised by demurrer, which by statute Is
limited TO certain particular cases therein spe
ciically set forth. None Of these apply unless
il be the sixth subdivision Of section g. on page
80, OF the Revised Statutes, which IL in these
words THAT the complaint does not state
facts sufficient to constitute a cause Of action.
the clause relating to complaints which says
that II must contain a statement Of the facts
constituting the cause Of action, &c. and ar
CUES that II the facts stated do not support the
rhoie cause OF action, demurrer will lie. !
cannot assent TO this position The case OF nc
ton can only mean the main substantive cause
OF action, to which the facts alleged principally
relate, and II has never been held. 80 FAR ms
know, that a deficiency Of alleged facts M 10
anything merely incidental 10 the substantive
ground q action Is good cause oil demurrer IN
der the code. such defect or deficiency IN A
complaint relates rather TO the event than the
cause Of action-to the amount OF damages,
than to no damages mt all. This demurrer,
moreover. must be based on the sixth DIVISION
aforesaid, not on that relating TO complaints
which il referred to by DEFENDANTS counsel
Under the 9th subdivision, demurrer will only
lie 10 a complaint wbenit does not contain facts
sufficient TO constitute cause Of acton-not
the but a cause OF action. Hence, as II il not
pretended that the plantlil IL not entitled TO a
judgment for the principal sum ramed in his
complaint, and AZ the demurrer IL To the com
complaint, II must fail. The complaint, con
iessedly contains facts sufficient TO constitute a
cause OF action, whatever becomes OF defend
ants objection TO the recovery Of the interest
claimed 10 have accrued on the note after its
maturity. Some reliance IL placed by defend
ant on the position that the complaint dlscloses
WV Na"7'' W N'''NH NV ~ - pm "H' ~
tcrest I'LL maturi'y,--abd one Tor interest after
maturity. Bat think the position cannot be
sustained. The recovery Of the principal II the
cause Of action, interest merely the incident.
and the pleader was never required TO add q
separate and independent count for the interest
in an action on . proinissofy note. II follows
the main course Of action ~ its necessary and
inseparable incident.
But granting that there are two causes of &C
ton AS claimed, the demurrer does not 20 10 the
whoif cause Of action, ~ respects the interest.
1t admits that some interest after maturity IL
recoverable, though iess than plaintiff de
mands. Hence II must fail, since II Is well set
tied that a demurrer which does not reach the
whole complaint twhile protesting TO do so) or
the whole course Of action TO which II is taken,
IL insufficient and must be ovorruled.
The only legal mode In my opinion, Of rails
ing the question involved in this action IL under
that section OF statute which provides that q
defendant. who has appeared, may without al.
swerlng demand an assessment OF damages, or
Of the amount the plaintiff is entitled to recov-
er &C. II affords plain, direct and iDexpen.
sse mode Of testing oil these questions Of fact
and law, which respect the event rather than
the cause Of action. and wherein the rights u