HUGHES v. DUNDEE MORTGAGE & TRUST INVESTMENT 00. 41
Ellis Hughes, pro se. V
Earl O. Bronaugh., for defendant. i i
Dmnv, J. This action is brought by the plaintiff, a citizen of Or- t
egon, against the defendant, a corporation of Great Britain, to recover
for his services as an attorney, in making 554 certificates of title to
real property, the sum of $11,222.74, with interest from January 31,
1880, to date, amounting in all to $15,350.19. The case was before
this court on March 31st, on a demurrer to the nfth defense to the
action, alleging a former action and judgment therein, between the
same parties, for the same cause of action, when the demurrer was
overruled. 26 Fed. Rep. 831. It is now before the court on a mo-
tion to strike out certain parts of the replication, including the third
reply to said fifth defense, and a demurrer to the reply to the fourth
defense, and the nrst and second replies to said fifth defense.
The motion to strike out the allegations in the replication num`-
bered from 1 to 9, inclusive, and the third reply to the fifth defense,
is allowed. The motion to strike out the allegation numbered 10 is
disallowed. ‘
The first allegation is an immaterial qualification of a denial that
the plaintiff ever advised defendant as to its amalgamation with the
Oregon & Washington Trust Investment Company. The second,
third, and fourth ones are statements of fact, evidentiary in their
character, tending to show that the defendant knew the relations A
between the plaintiff and said trust company, and the liability of
the latter to him for services rendered as alleged in the complaint.
The fifth one is to the effect that said trust company was solvent at
the time of said amalgamation, and that the plaintiff had no inter—
est to promote the same. The sixth, seventh, and ninth ones are
parts of the first reply to the fifth defense, and are conclusions of law
merely. The tenth one is what is left of said reply, and is now a mere
denial of the alleged bar of the former judgment.
The third reply to the fifth defense is to the effect that, at the
time of bringing the former action mentioned in said fifth defense,
the plaintiff did not know that he had the claim set forth in the-
complaint herein, or that the same existed, until issue was joined
I in said former action. Apparently this is a sham reply, and, whether
so or not, it is certainly immaterial. If this claim is a part of t_he
cause of action or claim on which the former action was brought, as
alleged in said nfth defense, it makes no difference, so far as such de-
fense is concerned, whether the plaintiff was then aware of its exist-
ence or not.
The fourth defense alleges that the making of each of said certifi-
cates of title was a sepa1·ate and distinct transaction, and that
$8,819.70 of the claim made for such service accrued more than six
years before the commencement of this action, which is therefore so
far barred by the lapse of time. The reply thereto is merely a de-