all the material allegations of the answer, to enable him to verify. Hunt v. Meacham, 6 Pr. R., 400. It was held otherwise by the superior court, in Latson v. Lefevre, 10 Leg. Obs. 246.

Under the code of 1849, it was held that where an answer to the allegations of the complaint, or some of them, might subject the defendant to a criminal prosecution, he need not admit or deny such allegations on oath. He must put in a sworn answer, in which he may state that by answering on oath the particular allegations specified, he may subject himself to a criminal prosecution, and as to the residue of the complaint he will answer in the usual manner. Such an answer will be deemed to put in issue the allegations of the complaint, which the defendant excuses himself from answering. Hill v. Muller, 2 Sand. S. C. R.. 684. 3 Code Rep., 199; White v. Cumming, 1 Code Rep N. S., 107; and see Bailey v. Dean, 5 Barb. S. C. R., 297. And under the practice in equity a party was not compelled to answer where his answer would criminate him. 1 Johns Ch. R., 65. 2 Paige, 599. 1 Hayw., 168. 1 Root, 310. Where the pleading is subscribed by the attorney, it seems it is not necessary, although it is proper, that he should add the word attorney after his signature. Bergen v. Boerum, 2 Cai. Rep., 256.

Where an answer is sworn out of the State, it must be authenticated in the manner required for authenticating affidavits taken out of the State. In such cases it must be authenticated as follows:

1. It must be certified, by some judge of a court having a seal, to have been subscribed and taken before him, specifying the time and place w here and when taken.

2. The genuineness of the signature of such judge, the existence of the court and the fact that such judge is a member thereof, must be certified by the clerk of the court, under the seal thereof. 2 R. S, 2d ed, 317, s. 33. 12 Wend., 223. 3 Hill, 461.

Au answer put in by a defendant residing out of the State, must be sworn before a judge of some court having a seal, who is actually a member of such court. And that fact must be certified by the clerk of such court. A master extraordinary in England, has no power to take the oath of a person residing there to an answer, in an action pending in this State. Lahens v. Fielden, 1 Barb. S. C. R., 22.

In case of a foreigner who does not understand the English language, an order may be obtained, of course, for an interpreter; and the answer being written in the language of such foreigner, a translation in English is to be annexed. The interpreter being sworn to interpret truly, conveys to the defendant the language of the oath. The interpreter is also sworn to the fidelity of the translation. The jurat is to be adapted to the circumstances of the case. As to the mode of taking the answer of a person deaf and dumb. see Reynolds v. Jones, 2 Dan. Ch. Pr., 280.

Where a pleading is verified by a person unable to read or write, the party taking the affidavit should first read over the pleading and affidavit to such party, and explain the same to him, and state those facts in the jurat. See the form, Townshend's Forms, p 2.

Pleadings are to be legibly written, and the folios, where they exceed two folios in length, distinctly marked. Supreme court rules, rule 41; and the attorney's name and residence indorsed. Ib., rule 5.

Formerly, a party was required to state in his pleading, the name of the attorney by whom he appeared. 2 R. S., 273, s. 27, [351, s. 26.] But where the suit was prosecuted by a law firm, it was enough that the name of the firm prosecuting or defending the suit was stated; both Christian and surnames needed not to be given. 12 Wend., 424. Is this provision still in force?

§ 158. [135.] (Amended 1849-1851.) How to state an account in pleading.-It shall not be necessary for a party to set forth in a pleading, the items of an account therein alleged; but he shall deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, which if the pleading is verified, must be verified by his own oath, or that of his agent or attorney, if within the personal knowledge of such agent or attorney, to the effect that he believes it to be

true, or be precluded from giving evidence thereof. The court, or a judge thereof, or a county judge, may order a "further account, when the one delivered is defective; and the court may in all cases order a bill of particulars of the claim of either party to be furnished.

a

The amendments of 1851 are the insertion of the words in italic; the words " further account," are substituted for the words "a further or more particular bill." This section was substituted in the code of 1849, for section 135 in the code of 1848; and that section was held not to apply to the marine court. Winslow v. Kierski, 2 Sand. S. C. R., 304.

Where from the nature of the action the knowledge of the facts, on which the plaintiff's claim rests. is more with the defendant than with the plaintiff, the latter will not be required to furnish a bill of particulars until he has obtained or at least had an opportunity to obtain a discovery from the defendant. Young v. DeMott, 1 Barb. S. C. R., 30.

See Green v. Brown, 3 Barb, S. C. R., 119.

159. [136.] Pleadings to be liberally construed.-In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.

§ 160. [137.] (Amended 1849.) Irrelevant or redundant matter to be stricken out.-If irrelevant or redundant matter be inserted in a pleading, it may be stricken out, on motion of any person aggrieved thereby. And when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain, by amendment.

This section is substituted for section 137 in the code of 1848. In that code the section stopped at the point were the asterisk is placed; the remainder of the section is one of the amendments of 1849.

Motion when and how made.

By rule 40 of the supreme court rules, a motion, under this section, must be noticed before demurring, or answering the pleading objected to, and within twenty days from the service thereof. (See, Rule in Appendix.)

And before the promulgation of the above rule, it was held, overruling a previous decision to the contrary (Stokes v. Hager, 1 Code Rep, 84), that the objection under this section must be taken before the time to answer or reply expired. Isham v. Wiliamson, 7 Leg Obs, 340. Korlies v. Delaplaine, 2 Sand. S. C. R., 680. 2 Code Rep., 117. And where a plaintiff obtained an order for further time to reply, and afterwards, before the expiration of such further time, moved under this section, it was held that he was too late, or had waived his right so to move. Ib. See, contra, M ln v. Vose, 4 Sand. S. C. R., 660. And where a motion to strike out matter as irrelevant or redundant was made within twenty days from the service of the last pleading, but not until after both parties had noticed the cause for trial, it was held. that by noticing a cause for trial, a party admits the sufficiency of his adversaries' pleading, and caunot afterwards move under this section. Esmond v. Van Benschoten, 5 Pr. R., 44.

It was held by Cady J., in the supreme court, that on a motion to strike out irrelevant or redundant matter, the moving party should show by affidavit when the pleading objected to was served, that the court might know the application was made in time. Rogers v. Rathbone, 6 Pr. R.. 66; 1 Code Rep. N. S., 404; this case was cited in the superior court in Barber v. Bennett, 4 Sand. S. C. R.,.705; but it was held by Sandford, J., with the concurrence of Duer, Paine, and Bosworth, JJ., that it was not

necessary for the moving party to show affirmatively that his motion was in time. If the notice is not given within the twenty days, the adverse party must show the fact in the same way that he establishes any matter of defence not apparent in the moving papers. The supreme court decision seems the more correct on principle, and at least will be the safer for the practitioner to follow.

The motion to strike out redundant or irrelevant matter is not a substitute for a demurrer. Harlow v. Hamilton, 6 Pr. R., 475.

What may be struck out.

An entire complaint cannot be stricken out as irrelevant or redundant. Benedict v. Dake, 6 Pr. R., 352. Nichols v. Jones, Ib., 355.

On a motion to strike out parts of a pleading as irrelevant or redundant, the moving party should by his moving papers point out the precise parts at which his objections are aimed. Benedict v. Dake, 6 Pr. R., 352.

A demurrer to the whole complaint assigned several causes that extended to the whole complaint; but other parts or specifications of the demurrer alleged that certain specified portions of the complaint were redundant, immaterial, and uncertain: a motion to strike out the last mentioned specifications in the demurrer as irrelevant, redundant, impertinent, &c., was denied. Smith v. Brown, 6 Pr. R., 383.

Does section 160 apply to demurrers? Ib.

If an answer otherwise good is loaded with unnecessary and redundant matters, the plaintiff'should move under section 160 to have such matters expunged. Nichols v. Jones, 6 Pr. R., 358. Harlow v. Hamilton, Ib., 475.

"The motion to strike out redundant or irrelevant matter is analogous to a demurrer, and should, I think, be decided on the same principles If the matter cannot be made the subject of a material issue it has no business in the pleading, and ought not to be left there to embarrass the opposite party and the court. Any matter which upon exceptions for impertinence under the chancery practice would be struck out as unnecessary or impertinent, should on motion be struck out as redundant or irrelevant." Per Harris, J., in Rensselaer & Wash. Plank Road Co. v. Wetsel. 6 Pr. R., 68. 1 Code Rep. N. S., 404. Stewart v. Bouton, 6 Pr. R., 71. 1 Code Rep. N. S., 404.

Uncertainty is to be remedied by amendment, and irrelevancy by striking out; both these ends are to be attained not by demurrer but by motion. B'k of N. America v. Suydam, I Code Rep. N. S., 325.

Where a complaint in slander set forth the speaking by the defendant at a certain time and place certain words, and further that the defendant on divers days and times between that day and the commencement of this suit spoke the same words. words in italic were held to be redundant. Gray v. Nellis, 6 Pr. R., 290.

The

Where a complaint contains several causes of action, and the causes of action are not separately stated, all such parts of the complaint as are not necessary to the first mentioned cause of action are redundant; and the same with an answer, if it state several defences and they are not separated. Benedict v. Seymour, 6 Pr. R. 298; and see rule 87 of the supreme court rules in appendix.

If a pleading is correct in substance but not in form, the remedy is not by demurrer, but by motion to make it more certain and definite. Powell v. Fraser, 1 Code Rep. N. S, 270.

If a pleading is not sufficiently definite, the proper mode of correcting the error is by motion, not by demurrer. Bennet v. Wisner, 1 Code Rep. N.S., 143.

Matter is irrelevant in a pleading, which has no bearing on the subject matter of the controversy, and cannot affect the decision of the court. If the complaint does not state a case on which if uncontradicted the plaintiff has a right to recover, the defendant must present his objection by demurrer, and not by motion to strike out the complaint as irrelevant; and the same rule is applicable to an answer. If the whole matter of the answer is no defence to the plaintiff's claim, the answer is insufficient, and not irrelevant in the meaning of the code. Fabricotti v. Launitz, 1 Code Rep. N. S., 121.

Allegations in an answer, in an action for libel, which would not be allowed to be proved even in mitigation of damages, should be stricken out as irrelevant. Brown v. Orvis, 6 Pr. R, 376. But it is presumed that unless such matter is obnoxious to objection as scandalous, it should remain, and its relevancy be passed on by the presiding judge on the trial of the issues of fact. Newman v. Harrison, 1 Code Rep. N. S.,

If a party make distinct though immaterial allegations and in a traversable form,

he cannot move to strike out his adversaries pleading taking issue thereon. King v. Utica Ins. Co., 6 Pr. R., 485; and see Anon., 2 Code Rep., 67.

Irrelevant or redundant matter must be such as cannot be reached by demurrer, and be also prejudicial to the adverse party, to authorize it to be stricken out under this section. White v. Kidd, 2 Code Rep., 47. 4 Pr. R., 68. And generally where one good ground of defence is contained in the answer, so that the plaintiff cannot apply for judgment on the ground that the whole answer is frivolous, the true mode of determining whether any particular defence is sufficient, is by demurrer. Ib. If in stating a defence, irrelevant or redundant matter be inserted with that which is material, so that it cannot be reached by demurrer, this section provides that it may be stricken out on motion, when the plaintiff would be prejudiced by suffering it to remain in the answer. Ib.

This section does not authorize the striking out every irrelevant or redundant expression. A party must be aggrieved or prejudiced thereby. Hynds v. Griswold, 2 Code Rep., 47. 4 Pr. R., 69. And per Harris, J., conceding the matter to be irrelevant, it does not necessarily follow that the motion to strike it out should be granted. This section does not authorize the striking out every redundant expression or clause to be found in a pleading. On the contrary, effect must be given to the word "aggrieved," as used in that section. The matter must not only be "irrelevant or redundant," but some person must be prejudiced thereby. Such a person only is authorized to make the motion. Ib. I am inclined to think it proper for a defendant to state in his answer any facts which it would be material for him to prove on the trial, though such facts may not constitute a complete defence. Any thing which it would be material to prove on the trial ought not, I think, to be deemed irrelevant, when stated in the answer. The plaintiff ought not to complain that the defendant has apprised him of facts upon which he intends to rely in mitigation of damages, if not in defence upon the trial. 1b. A motion to strike out irrelevant or redundant matter answers in place of an exception for impertinence under the former equity practice. 16. And Benedict v. Dake, 6 Pr. R., 353. The objection for insufficiency, will generally be taken by demurrer. For redundancy, a demurrer will not in general afford an appropriate remedy, and resort must be had to a motion. Esmond v. Van Benschoten, 5 Pr. R., 44. On a motion to strike out from a complaint portions of two affidavits, made by persons neither parties to the suit nor related to the defendants,and also the following words: "The plaintiff expressly charges and alleges that the said defendants have been guilty of the crime of forgery, in crossing and obliterating the aforesaid indorsement, and that the same was done to cheat and defraud the plaintiff; and that the defendants have been guilty of other dishonest and fraudulent acts." The court granted the motion, and per Hand, J.: "If this section (160) does not include scandalous and impertinent matter, it contains no prohibition, and they may still be struck out of a pleading. The old practice in this respect yet exists. It would be monstrous if there were no mode of purifying the record by expunging scandalous matter. It cannot be done by demurrer. (1 Dan. Ch. Pr., 401; Code, s. 144.) By irrelevant or redundant,' in the code, I take it is meant, what is usually understood as impertinent; for a pleading in equity is impertinent, when it is stuffed with long recitals or long digressions, which are altogether unnecessary and totally immaterial to the matter in hand. 1 Barb. Ch. Pr., 41. Woods v. Morrel, 1 John. Ch. R., 106. It is surplusage at law. According to Webster, redundant means superfluous, more than is necessary, superabundant and irrelevant, not applicable or pertinent, not serving to support. Both, therefore, may probably come under the head of impertinent Prolixity may become redundance, and Lord Eldon held, that needless prolixity was in itself impertinence; and see, 4 Edw. Ch. R., 426.

extent.

"It has been thought, irrelevant and redundant matter should not be struck out unless a party is aggrieved or prejudiced thereby. (White v. Kidd, 4 Pr. R., 68. Hynds v. Griswold, id., 69.) With deference, I doubt that this is so to the fullest As to scandalous matter, it is not clear that a person not a party to the record may not move to strike it out. (Coffin v. Cooper, 6 Ves., 514. Williams v. Douglass, 5 Beav., 82. Ex parte Simpson, 15 Ves., 477. 5 Íd., 656, note.) And the court, it seems, will do it without application of any one. And impertinence in an answer was always exceptional. My own impressions are, that as to scandalous and impertinent, irrelevant and redundant matter, the code has not in any respect changed the former practice in equity cases. (See Shaw v. Jayne, 4 Pr., R., 119. Knowles v. Gee., Id., 317.) Its effect on what before the code would have been cases at law s not now under consideration. If this view is correct, the adverse party may alway

12

be considered aggrieved by scandalous, irrelevant, impertinent, and redundant matter in pleading. I think one may be ecnsidered aggrieved by the interpolation of matter into the pleadings in a cause in which he is a party, foreign to the case; and he always had a right to have the record expurgated for that reason, without reference to the question of costs. If relevant, it cannot be scandalous. St. John v. St. John, 11 Ves., 526. A few unnecessary words will not make a pleading impertinent. Del Pont v. De Tastel, 1 Tur. and Russ, 456. Des Places v. Goris, 1 Edw. Ch. R., 350. And courts should be liberal, especially until our novel system of pleading shall have become better settled and understood. Every fact, direct or collateral, tending to sustain the general allegations of the bill, may be inserted, if done in a proper manner. Hawley v. Wolverton, 5 Paige, 522. Perry v. Perry, 1 Barb. Ch. Rep.,

519.

“And in Delpont v. Tastel, supra, which, however, goes to the extent of the rule, extracts from letters of the defendant were permitted for the purpose of eliciting answers as to those letters.

"But the principal case is very different. Here, portions of two affidavits, probably extra-judicial, by persons not parties to the suit, are inserted, neither of which amount to more than the mere statements of third persons, and are in no sense papers or transactions between the parties, and cannot be given in evidence, nor their existence or validity be put in issue between them. Chancellor Kent thought the best test by which to ascertain whether the matter be impertinent, is to try whether the subject of the allegation could be put in issue, and would be matter proper to be given in evidence between the parties. Woods v. Morrell, supra. The plaintiff might as well have inserted a letter from his own attorney, giving his recollection of the history of the case.

"The allegation that one or both of the defendants were guilty of forgery, and also the allegations of fraudulent and dishonest acts in obtaining the judgment, without specifying what those acts were, are still more exceptionable. The complaint alleges that when the plaintiff, Carpenter, transferred the note against Huling to West, there was upon it an indorsement in pencil of $20; that he is informed and believes West obtained judgment against Huling for the whole amount, without deducting the $20, and is also informed and believes, that there was no trace of this indorsement on it at that time, and that Huling has paid the judgment; and that it was understood that when Huling paid what was due, deducting the indorsement, that completed the payment of Carpenter's debt to West. If Carpenter sold the note for a certain sum, as he alleges, and West afterwards recovered the whole amount, that seems to be a matter between him and Huling, the payer. No liability of Carpenter, therefore, is suggested. This, then, is irrelevant. But the plaintiff, Carpenter, goes further, and expressly alleges and charges, that West and Van Benthuysen," some or both of them have been guilty of the crime of forgery, in crossing or obliterating the indorsement, and that it was done to cheat and defraud the plaintiffs." As to Van Benthuysen, this seems to be the only connection he has had with the note; for it does not ap pear that he ever heard of it before. As to West, the charge, if true is wholly irrelevant, and not issuable in this cause, and bears cruelly upon his moral character, and is, therefore, scandalous; more so, I think, than in the case of Ex parte Simpson, supra, and Somers v. Torrey, 5 Paige, 54, where the matter was expunged with evident marks of reprobation. The general charge of their dishonest and fraudulent acts in obtaining the judgment, is also not issuable and is scandalous." Carpenter v. West, 5 Pr. R., 53.

In Burgett v. Bissell, 3 Code Rep., 215; 5 Pr. R., 192, a motion was made to strike out a large portion of the defendant's answer as irrelevant and redundant. The complaint was for taking and carrying away four hundred sticks of pine timber. The answer denied the taking the timber, and alleged the title to the timber to be in the defendant, and then entered into a statement showing how he acquired such title. Wells, J., however, refused to strike it out, on the ground that it constituted an equitable defence.

It is no sufficient answer to a motion to strike out irrelevant or redundant matter from a complaint, that such matter was inserted solely for the purpose of enabling the plaintiff to obtain an injunction. Putnam v. Putnam, 2 Code Rep., 64.

If it was deemed necessary to bring these facts and circumstances before the court, the proper mode of doing so was to embody them in an affidavit, and not to encumber the pleadings with matter which it is admitted is not necessary there for