Whitwell v. Thomas

Field, J., delivered the opinion of the Court—Terry, C. J., and Burnett, J., concurring. The only question for consideration is, whether any material averment of the complaint is denied by the answer. The test [500] of materiality is this: Could the averment be striken from the pleading without leaving it insufficient ? (Practice Act, § 66.) Judged by this test, the averment of copartnership is immaterial. The complaint would be sufficient if this were stricken out. The execution of the notos—not the copartnership of the defendants at the time, constitutes the material averment, and this is not controverted. Judgment affirmed.