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Williams agt. Hayes.

and not those facts and circumstances which merely go to establish such essential facts." (See also Shaw vs. Jaynes, 4 Howard, 119; Glenny vs. Hitchins, id. 98; Russell vs. Clapp, id. 347; McMurray vs. Gifford, 5 id. 14.) The criterion in every such. case is, I think, whether the allegation in question can be made the subject of a material issue. If it can, it has a right to be found in the pleadings; if not, it ought not to be there. The rule may be illustrated by the case under consideration. A material fact stated in the complaint is, that the mortgage in question has been paid. Upon this allegation a material issue might be made. Upon this issue, it would be very pertinent to prove another allegation in the complaint, that the mortgagee had in his life time, publicly stated that the mortgage was paid. This would be evidence tending to show that the mortgage was in fact paid; but could a material issue be made upon the latter allegation? Whether the mortgagee had said so or not, is only important as it may furnish evidence upon another issue, that is, whether the mortgagee had, in fact, been paid or not. In the language of Justice SELDEN, "it is a fact which merely goes to establish the essential fact," namely, that the mortgagee is really paid. The Code has no where provided that evidence, or, which is the same thing, facts which constitute evidence of an essential fact in the case, may be inserted in any pleading. On the contrary it limits pleadings to the statement of such facts as constitute a cause of action or a defence; or, in case of a reply, such facts as will avoid a defence.

The learned judge whose doctrine, as stated in Knowles vs. Gee (4 Howard, 317), I am so willing to adopt, has, in a more recent case himself laid down a different rule. In The Rochester City Bank vs. Suydam (5 Howard, 216), he has held that "the statement of facts in the complaint, should be in conformity with the nature of the action. If the case and relief sought be of an equitable nature then the rules of chancery pleading are to be applied; otherwise those of the common law. With great deference, I am constrained to dissent from this conclusion. It was not the intention of the legislature, in adopting the Code, to con

Williams agt. Hayes.

tinue the distinction between common law and equity pleadings. On the contrary, it was intended that there should be but one system of pleadings. It was not intended that the rules of common law pleading should be applicable to one class of cases, and those of chancery pleading, to another. On the contrary, it was intended that neither the rules of common law pleading, nor those of equity pleading, should be exclusively applicable to any case of pleading under the Code. In every case the criterion, by which to judge of the sufficiency or insufficiency of the pleading, is to be the same. Whether the case is one of an equitable nature, or of common law jurisdiction, so far as the pleading states facts essential to the cause of action, or the defence, or to avoid the matter of the defence, so far it is unobjectionable; whatever else it contains, is redundant or irrelevant, and may properly be stricken out. If I am right in this view of the question, it follows that matters of evidence, or as it is expressed by Justice Selden, "the facts and circumstances which go to establish the essential facts in the case, ought not to be inserted in the pleadings. The very language in which the Code has prescribed what the several pleadings which it allows shall contain, seem to exclude from such pleadings all mere matters of evidence. My own experience, and I think that of every other judge, as well as that of the bar, has proved that it is wise, if not absolutely necessary, if we would give practical efficiency to this novel system, to confine the pleadings to their legitimate office, and whenever the opportunity is presented, to disencumber them of the unnecessary matter, with which they are now so frequently crowded. By this means alone, I am fully persuaded, can the system of pleading be rendered useful or even tolerable, and the end for which it was adopted, that of simplifying and abridging pleadings, be attained.

If the principle stated is to be applied to the case before me, this motion must be granted. Striking out all the matter embraced in this motion, it leaves the complaint still containing a statement of all the facts constituting the plaintiff's cause of action. The matter which it is proposed to strike out, consists of facts and circumstances, which, if proved, would tend to sustain

Williams agt. Hayes.

an issue upon the material facts alleged; but which if denied, would not themselves present a material issue for trial. Some of these facts and circumstances might properly be proved, if issue were joined upon the material facts in the case, and some of them would not be competent even as evidence. Such allegations can render no useful service. They only tend to encumber the pleadings, and render them complex and prolix. They ought, therefore, to be struck out.

I was referred upon the argument to what I have myself said, in Hynds vs. Griswold (4 Howard, 69), in support of the position, that if, upon the trial, it would be pertinent for the plaintiff to prove the facts alleged, they could not be deemed irrelevant. Perhaps the language I have used in that case, requires some qualification. All I intended to assert was, that facts which might be material to the issue, as tending to aggravate or mitigate damages, might properly be stated in the pleadings, though not necessary to constitute a complete cause of action; or, in case of an answer not constituting a complete defence. The language of that opinion requires to be qualified in another particular. When it is said that before matter can be stricken out of a pleading it must not only appear to be redundant or irrelevant, but also that some party is aggrieved or prejudiced thereby, it would seem to be a fair inference that before such a motion could be granted it must be shewn, in support of the motion that some actual injury would result to the moving party, if the matter sought to be expunged was suffered to remain. If such a construction is to be given to the opinion, it is certainly erroneous. I concur entirely in the view taken of this question, by Mr Justice HAND in Carpenter vs. West (5 Howard, 53). It is not every unnecessary expression or redundant sentence, which should be expunged on motion. But where entire statements are introduced upon which no material issue can be taken, the opposite party may be "aggrieved" by allowing them to remain in the pleading. If not answered, it may be claimed that such allegations are admitted, and if denied, the record is embarrassed with immaterial issues. In all such cases, it is the right of the adverse party to have the

Averill agt. Taylor and Vernon.

matter, improperly inserted in the pleading, removed so that the record, when complete, shall present nothing but the issuable facts in the case. This I understand to be the true spirit and general policy of the system of pleading prescribed by the Code. The motion in this case must be granted with costs.

SUPREME COURT.

AVERILL agt. TAYLOR and VERNON surviving Executors.

No part of an answer onght to be struck out which can in any event become material.

It seems, that in a suit brought to have a bond and mortgage delivered up and canceled, the defendant may ask for and, if successful, may have the positive relief of a foreclosure, and in such case may in his answer require that all persons interested shall be made parties.

The prayers of the defendant in his answer can not prejudice the plaintiff and will not be struck out on motion. (See Williams agt. Hayes, ante page 470.) It seems that foreign executors may foreclose a mortgage in this state without aking out letters testamentary here.

Saratoga Special Term, December 1850. This was a motion to strike out certain parts of the defendants' answer for irrelevancy, impertinence and immateriality, and was made on the complaint and answer, and on a short affidavit stating the time of serving the same. The suit was brought for an injunction to restrain the defendants from proceeding with a statute foreclosure of a certain bond and mortgage, conditioned for the payment of a sum of money; and to have the bond and mortgage delivered up and cancelled. The complaint stated, in substance, that Jesse Averill, the plaintiff, executed the bond and mortgage to Marvin Averill, his brother, under an agreement that, if Jesse should support their parents during the natural life of each, then he should not be obliged to pay said bond and mortgage; that Jesse had fulfilled said agreement, and that several years afterwards Marvin had expressed himself satisfied with such fulfillment, and had promised to cancel the bond and inortgage; that as the plaintiff was informed, Marvin had died without canceling the bond and mortgage, but had, by his will, bequeathed or released the same to Jesse; that the defendants had never taken out letters testamentary in this state,

Averill agt. Taylor and Vernon.

but that they pretended to be the executors of Marvin, appointed by the aforesaid will, and were foreclosing the mortgage by advertisement.

The answer denied the alleged agreement; the fulfilment of the same by Jesse, and the subsequent promises of Marvin; set forth the will containing the alleged bequest or release; alleged that Marvin was insolvent at the time of his death, and that the defendants were his surviving executors; admitted that they had not taken out letters testamentary in this state, and that they were foreclosing by statute; alleged also that prior to the commencement of the suit, Jesse had sold and conveyed a part of the mortgaged premises to A. E. Smith, who was still in possession thereof; and prayed that Smith might be made a party to the suit, and that the defendants might have a decree of foreclosure against the plaintiff and said Smith, when made a party. J. W. & L. E. THOMPSON, for Plaintiffs.

LEARNED & WILSON, for Defendants.

CADY, Justice. The insolvency of the testator at the time of his death may be a material question in the cause, if the plaintiff shall rely at all on the bequest in the will, in his favor; for debts are to be paid before legacies (2 R. S. 90, § 44 and 45; Lupton, vs. Lupton, 2 John. Ch. Rep. 614). That part of the answer, therefore, ought not to be struck out, if it can in any event become material.

The next part of the answer relates to the fact that the plaintiff and his wife have conveyed a part of the premises to A. E. Smith, and the necessity of his being made a party. If it were certain that the plaintiff is entitled to have the bond and mortgage given up and cancelled, and that the defendants could not have in this suit a decree of foreclosure and for a sale of the mortgaged premises, there would be no necessity for making A. E. Smith a party; but if, upon this bill, the defendant can have a decree of foreclosure and to sell the mortgaged premises, then A. E. Smith is a necessary party. I am not prepared to say whether such decree can or can not be made in a case like this; but I do not perceive any good reason against it.

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