Page:Federal Reporter, 1st Series, Volume 1.djvu/302

294: FEDERAL REPORTER. �and others non-issuable, the proper practice is a motion to make the pleading more deflnite and certain. �Fourth. Motions to strike ont special clauses or sentences in a pleading this court will not entertain, for it cannot determine, in advance of the trial, to what issuable facts they may pertain; nor will the court, through suoh motions, be driven to the necessity, after repeated experiments, of doing practically the pleading for the party in default. This court recognizes, therefore, demurrers and motions to make plead- ings moïe definite and specifie. A motion to strike out, if admissible at ail, must be directed to an entire pleading, or a whole count or division. Matter appearing to be scan- dalous would form an exception to the rule. �There ~ is a very important consideration in this ruling, ■which every good pleader will recognize, viz. : that while a demurrer cuts baok to the first bad pleading, it is by no means sure that a motion to strike out will effect the same end; nor is it sure that the decision on such a motion could be considered a final judgment, entitling the party to a writ of error or appeal. �These general propositions are now redueed to form, not beeause this case requires the statement of them, but that it may be understood that the rulings of Mr. Justice Miller, and Judges Dillon and Treat, heretofore made on the points stated, are to be adhered to. �As to the motion now before the court, it must suffice to say that the question intended to be prescribed woild have been more properly raised on demurrer to the answer, instead of a motion to strike out. But, waiving that technical ques- tion, we find that the answer as to the special defence is somewhat vague; yet, if true, it makes it appear that the alleged agreement set up in the petition, if made, was fraudu- lent and void. The defendants ought to have put themselves distinctly on record, by positive averments ; yet they have, by liberal construction, done so, and if a demurrer, instead of a motion, had been interposed, the objection made would have eut back to the petition. �The cause of action, as set out, discloses imperfeetly a con- ��� �