Page:Federal Reporter, 1st Series, Volume 1.djvu/300

29? FEDERAL REFOBXES. �Whether there is suf&cient proof of notice to Brewster; (2) whether the vender's lien was lost by his assignmeut of the claim for balance of the purchase price; (3) whether the plaintiff, if entitled to a lien, should recover the sum claimed ($1,180) and interest, or only the actual value of the 160 acres of Missouri land. �The ruling upon the question first discussed renders it mmecessary to pass upon any of these questions. I may remark, however, that there is a serious conflict of authority upon the question, whether a vendor's lien can be assigned, (see Macketti v. Symmons, White & ïudor's Lead. Cases in Eq. 235,) although the plaintiff cannot recover in this pro- ceeding, because he had no cause of action -when the suit was commenced; yet, as he has since corne again lawfuUy into possession of the claim, and now owns it, I think it right to dismiss the suit, without prejudice, at plaintiff's cost, and it is 60 ordered. ���crADSE and another v. Knapp and another, �{Circuit Court, E. D. Missouri. March 24, 1880.) �PiiBADiita— Certain Rules Kestated.— (1) In pleading, the parties re- spectively must aver the issuable faots and nothing more ; (2) if a plead- ing has not sufflcient issuable facts to constitute a cause of antion or defence, pr is mixed with statements as to evidence to support the same, the opposite party may demur ; (3) if a pleading is so vague and conf used that the material and immaterial allegations are intermixed, or a mass of statements are contained therein, some issuable and others non-issuable, the opposite party may move to make the pleading more definite and certain ; (4) but motions ta strike out special clauses and sentences in a pleading will not be entertained. �Motion to strike out a special defence. �Dryden e Dryden, for plaintiff s. �Vernon W. Knapp and McComas d McKeighan, for defend- ants. �McCraby, J. This is a motion to strike out a special defence. This cause was before the court at a previous term, Judge Dillon presiding, at which time it was suggested that ��� �