2 Doug. 359 | Mich. | 1846
An information in the nature of a quo warranto was filed against the defendants, by the Attorney General, on the 14th October, 1845. The information in substance states, that the defendants, “ for the period of six months now last past, have used, and still do use, without any warrant, grant, or charter, the following liberties, pri
To this information the defendant appeared, and on the 14th November, 1845, filed a plea, which, after stating, in substance, that by an act of the legislative council, passed March 16th, 1835, they were constituted a body politic and corporate for a period of twenty years from the passage of the act, and that, by force of the act, they become entitled to, and used the liberties, privileges, and franchises of becoming proprietors of a bank, or fund for the purpose of issuing notes, receiving deposites, making discounts, &c., proceeds at great length to state among other things that, in the years 1838 and 1839, the bank became the depositors of the funds of the state ; that in consequence of the embarrasments of the country &c., they were unable to pay a debt of about $500,000 due the state; that on the 1st February, 1840, the legislature passed an act, authorizing a settlement with the bank; that negotiations were had between the parties, which eventuated in a settlement, the terms of which are stated; that the state, professing to be dissatisfied with the terms of the settlement, on the 17th February, 1842, sanctioned the settlement, except the portion thereof by which the state was bound to indemnify the bank against certain liabilities,
A motion was made by the Attorney General to strike out as surplusage, all that part of the plea relating to the condition of the bank in the years 1838 and 1839, the negotiation and settlement with the state, and the several acts of the legislature in relation to such settlement, and the history of the several suits instituted by and against the bank &c.
If that portion of the plea, to which exception is taken, is mere surplusage, the motion is appropriate. Whether the motion is well founded or not, must depend upon the application to the matter objected to as surplusage, of a few elementary rules of pleading. “It is not necessary in pleading to state matter which would come more properly from the other side.” Steph. PI. 350. The true meaning of the rule is, “that it is not necessary to anticipate the answer of the adversary, which, according to Lord Hale, is like, leaping before . one comes to the stile.” It is sufficient, says the same author, that each pleading should in itself contain a good prima facie case, without reference to possible objections not yet urged. Gould thus states the rule: “In general, it is not necessary for either party to alledge more than will constitute, prima facie, a sufficient cause of action or defence. ' It is therefore, in general, unnecessary for a party to deny, or avoid by anticipation, all or any of the possible facts, which might furnish sufficient answers in law to his own allegations.” Gould’s PI. 167. The same rule is affirmed by Chitty,
In respect to the second ground upon which the objectionable matter is sought to be sustained, a satisfactory answer may be given. By their plea, the defendants show the commencement of a legal existence, under a valid charter, not yet expired. From this the law will presume their continued esistence down to the period of the filing of the information. People v. The President, &c. of the Manhattan Co., 9 Wend. 379; 3 Ph. Ev. by Cow. & Hill, 295. The defendants, have, therefore, alleged what the law will presume; this was unnecessary, and therefore surplusage. Stéph. PI. 354.
. The views I have expressed in regard to the appropriate mode of pleading in cases like that under consideration, are strongly fortified by the precedents to be found in the elementary works, and in reported cases. People v. Bank of Niagara, 6 Cow. 196; People v. Washington and, Warren Bank, Id. 211; People v. Bank of Hudson, Id. 217; People v. Utica Insurance Co., 15 John. 358.
It was insisted in argument, that the case of the People v. The Manhattan Co., 9 Wend. 351, furnishes an authority in favor of the validity of the plea in this case. I have given to that case a critical examination, and am unable to discover the analogy that was said to exist between it and the one before us. The information charged the defendants “with using, without lawful warrant or charter, the franchise of being a body politic and corporate, and of carrying on banking operations, without being authorized so to do. The defendants pleaded the act incorporating the company, and subsequent acts of the legislature recognizing their continued existence. The original act of incorporation contained a proviso that the company should, within ten years from the passing of the act, furnish and continue a suppfy of pure and wholesome water, sufficient
Upon the whole, we are of opinion that the motion of the Attorney General must be granted.