Bender agt. Sherwood and others. admits part of the plaintiff's claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and enforce the order as it enforces a provisional remedy." This is the provision under which the plaintiff claims the summary interference of the court. The remedy is extraordinary and severe. It should only be granted in a case clearly within the terms and spirit of the statute. This is not such a case. The defendants do not "admit a part of the plaintiff's claim to be just." All they admit is, that they have in hand, the fund which the plaintiff seeks to have paid over to him, but they state that they are ignorant whether that fund belongs to the plaintiff or the administrators of Parks. Under these circumstances, they ask that they may be permitted to pay the money into court, or that the court may make some order in respect to its application. In other words, without admitting the right of one party or the other to the fund in question, they state the facts, and submit the question to the court. Had this fund been the only subject of controversy, it would have been a proper case for interpleading, under the provisions of the 122d section of the Code. But, as the plaintiff claims judgment for the whole amount of the draft, the defendants, in order to protect themselves from further liability, were bound to answer; and I do not understand that a defendant can, under the statute referred to, have another person substituted in his place, as to a part of the plaintiff's demand, and interpose a defence as to the residue. Before the court can make an order that another person be substituted, it must appear that the defendant is entitled to be discharged from all liability upon any part of the plaintiff's demand. The defendants, therefore, had no alternative but to answer. It may be, that upon the trial, the court will think it so clear that the plaintiff is entitled to the fund, that it will direct it to be paid over at once. It may be, too, that it will be thought proper to require the administrators of Parks to be made parties to the action, before the question is finally determined. Molony agt. Dows.-Same agt. Turett. However this may be, the defendants are entitled to the judgment of the court, upon the case they have made by their answer. The motion, therefore, must be denied, but it is without costs. NEW-YORK COMMON PLEAS. JAMES R. MOLONY agt. JAMES Dows. THE SAME agt. MYERS F. TURETT. Under the Code a party has the right to set forth his cause of action fully, and unless he burdens his pleading with matters that are totally irrelevant, impertinent, or imposes upon the defendant the necessity of specifically traversing a great number of facts which are more properly evidence in support of a cause of action than substantive averments to show that a cause of action exists, the defendant cannot be regarded as aggrieved thereby. Motions to strike out parts of a pleading as irrelevant or redundant, are not to be encouraged unless it is manifest to the court that it would be to the prejudice of the party who has to answer, to suffer the objectionable matter to remain. Nor is a court to be taxed with the labor and trouble of minutely inspecting a pleading upon summary motion of this kind, for the purpose of ascertaining whether averments are or are not relevant, unless in cases when it is absolutely incumbent upon the party to get rid of them, to enable him to frame a proper answer. We have now no fatal variance between the pleading and the proof, which under the former system of pleading was so well calculated to prevent the pleader from setting forth his cause of action, or grounds of defence, in detail and particularity. He was well aware of the consequences of not proving his averments with the same particularity that he made them. Under the present system, a superabundance of averments, or matter in a pleading, is visited with the penalty of a motion at special term to strike out, thus throwing upon the court the duty and responsibility in a summary way, of deciding what is and what is not irrelevant and redundant matter. [And yet it seems by a late report of a committee of the legislature of 1857, the courts are (impliedly, at least,) censured for spending so much time on the hearing and decision of special motions. REPORTER] The plaintiff in his complaint in this case, stated what he thought was necessary to charge the defendants with a combination, as members of a vigilance committee in San Francisco, California, to injure the plaintiff, by his arrest and im Molony agt. Dows.-Same agt. Turett. prisonment, and deportation and banishment from that state, and the decision of the court upon motion to strike out portions of the complaint, shows what averments and matter they thought it necessary to strike out, and what should stand. Special Term, January, 1858. MOTIONS by the defendants to strike out divers portions of the respective complaints in the above actions. The character of the complaints and of the portions proposed to be stricken out, sufficiently appear in the opinion. JER. LAROCQUE, for defendants. DALY, Judge. The causes of action separately set forth in the three first counts are all embodied in the fourth count. It is not necessary that the affidavit should have been made of the identity. It is apparent upon the mere reading of the complaint. The plaintiff must, therefore, be compelled to elect whether he will rely upon the fourth or the three first counts, and as he has expressed the wish to rely upon the fourth count, if the court shall be of the opinion that he is bound to elect, the first count will be stricken out. The fourth count set forth three grounds of action, an assault, false imprisonment and conspiracy to injure. The circumstances out of which these three grounds of action arise are set forth at length, and are substantially the arrest, imprisonment and subsequent banishment of the plaintiff, from the state of California, by force and violence, without warrant of law, by the defendant, co-operating with others as members of an organization known as the vigilance committee of San Francisco. The assault and imprisonment do not appear to be relied upon in this count as distinct causes of action, but are set forth as the result and consequence of the alleged combination and conspiracy to injure the plaintiff, which is the general cause of action upon which the pleader, in framing this count, means to rely. An unlawful combination or conspiracy to injure another, is Molony agt. Dows.-Same agt. Turett. an indictable offence, though nothing be done to the injury of the individual. (Regina agt. Best, 2 Ld. Ray. 1167; King agt. Armstrong, 1 Vent. 304; King agt. Kimberly, 1 Lev. 62.) And if the conspiracy or combination be productive of injury to the person, reputation or property of the individual, he may maintain a civil action for damages against any or against all of the conspirators. (Savil agt. Roberts, 1 Salk. 14; Anon., 3 Salk. 97; Til. 46; Sut. 122.) Formerly the remedy for this injury was by a writ of conspiracy, which was in the nature of a civil action, but it was afterwards merged in the more convenient remedy of an action upon the case. (Subley agt. Mott, 1 Wils. 210.) The combination or conspiracy set forth here, is not averred to have been formed for the direct purpose of injuring the plaintiff. The defendants and others are alleged to have combined for the purpose of putting one Casey to death: to resist all courts or officers who should seek to hold them accountable, and to commit such other crimes and offences, as such resistance to the law might involve, or the giving of a public color or motive to their acts might suggest or occasion; that they assumed the name of the vigilance committee of San Francisco, and suddenly in surprise of the authorities, and of the peaceable citizens, seized all the arms that could be found, and organized bands of armed men who obeyed their will. It is then averred, that the governor of the state of California, called upon them to desist; that they refused; that the governor then issued a proclamation calling upon all ablebodied citizens to enrol themselves in the militia, and aid the government in subduing the insurrectionary conspiracy; that the plaintiff, in pursuance of such request, was enlisted and enrolled himself in the militia; that the governor issued a requisition upon General Wool for certain arms, which was complied with, and which were placed in the charge of the plaintiff and others to be conveyed to San Francisco, for the use of the state, when the plaintiff was assaulted, arrested and imprisoned by the direction of the said vigilance committee, the arms taken out of his possession, and after being kept for some time in close confinement, and denied all access to his Molony agt. Dows.-Same agt. Turett. friends, or of the means of attending to his affairs, and after being subjected to hardships, contumely and insult, that he was finally put on board of a vessel, and compelled to leave the state under the threat of death if he attempted to return. The injury of which the plaintiff complained, having been the result of orders or directions given by the vigilance committee, and as the defendants' liability to the plaintiff for these injuries, is predicated upon their being members of that organization, aiding and co-operating with them in their alleged unlawful acts, it was essential to a clear understanding of the ground of action relied upon, that the general scope and object of the alleged unlawful combination should be averred, and this could scarcely be done, without some reference to their acts and doings. A party has the right to set forth his cause of action fully, and unless he burdens his pleading with matters that are totally irrelevant and impertinent, or imposes upon the defendant the necessity of specifically traversing a great number of facts which are more properly evidence in support of a cause of action, than substantive averments to show that a cause of action exists, the defendant cannot in the language of the Code, be regarded as aggrieved thereby. Motions of this kind, are not to be encouraged, unless it is manifest to the court that it would be to the prejudice of the party who has to answer, to suffer the objectionable matter to remain. A court is not to be taxed with the labor and trouble of minutely inspecting a pleading upon summary motion of this kind, for the purpose of ascertaining whether averments are or are not relevant, unless in cases when it is absolutely incumbent upon a defendant to get rid of them, to enable him to frame a proper answer to the complaint. Under the old system of pleading there was no objection to the plaintiff setting forth his cause of action as minutely as he thought fit. He merely incurred the liability of proving it with the same particularity with which he averred it. A mode of pleading that was generally carefully avoided, to escape the consequence of fatal variance between the pleading and the proof. |