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. The amendments are the insertion of the words in italic, the words "a 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. § 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.] Irrelevant or redundant matters 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 where the asterisk is placed; the remainder of the section is one of the amendments of 1849. By rule 43 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.) Noticing the cause for trial, is a waiver of the right to move under this section, Esmond v. Van Benschoten, 5 Pr. R., 44; and even 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. Williamson, 7 Leg. Obs., 340. Corlies 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. 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 cannot afterwards move under the section. Esmond v. Van Benschoten, 5 Pr. R., 44. Irrelevant or redundant matter must be such as cannot be reached by demurrer, and 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 irrevelant or redundant expression. A party must be aggrieved or prejudiced thereby. Hynds v. Griswold, 2 Code Rep., 47. 4 Fr. 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 "irrele vant 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. Ib. A motion to strike out irrelevant or redundant matter answers in place of an exception for impertinence under the former equity practice. 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 endorsement, 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. Morrell, 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. 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 extent. 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 1d., 656 Note.) And the court, it seerns, will do it without application of any one. And impertinence in an answer was always exceptionable. 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, is not now under consideration. If this view is correct, the adverse party may always be considered aggrieved by scandalous, irrelevant, impertinent and redundant matter in pleading. I think one may be considered 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., 486. Des Places v. Goris, 1 Edw. C. 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. Code. 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 endorsement 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 endorsement 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 endorsement, 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 appear 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 any purpose of pleading, but merely to aid a collateral proceeding. Ib. The true test of the materiality of averments sought to be struck out, is to inquire whether such averments tend to constitute a cause of action or defence, and if they do, they will not be struck out. Ingersoll v. Ingersoll, 1 Code Rep., 102. An order of a single judge refusing to strike out matter at a special term is not an appealable order to the general term. Bedell v. Stickles, 3 Code Rep., 105. § 161. [138.] Judgments, how to be pleaded.—In pleading a judgment, or other determination of a court, or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial, the facts conferring jurisdiction. See, the last reported case on the former law on this subject, Barnes v. Harris, 3 Barb. S. C. R., 603. § 162. [139.] (Amended.)——Conditions precedent, how to be pleaded. In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance; but it may be stated generally that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish on the trial, the facts showing such performance. In an action or defence founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specified sum which he claims. The amendment consists of the addition of the words in italic. § 163. [140.] Private statutes, how to be pleaded.—In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute, by its title and the day of its passage, and the court shall thereupon take judicial notice. thereof. § 164. [141.] Libel and slander, how stated in complaint.— In an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it shall be sufficient to state generally, that the same was published or spoken concerning the plaintiff, and if such allegation be con troverted, the plaintiff shall be bound to establish, on trial, that it was so published or spoken. This section merely dispenses with the allegation of extrinsic facts showing the application of the words to the plaintiff, in order to obviate the difficulty which was supposed to have been occasioned by the decision of the supreme court in Miller v. Maxwell, 16 Wend., 9. It does not dispense with the necessity of an averment or inuendo when it becomes essential to show the meaning of the words themselves. And the fact that the code dispenses with the averment of extrinsic facts before necessary to point the application of the words to the plaintiff, justifies the inference that in other respects the rule formerly prevailing remains unchanged. Pike v. Van Wormer, 5 Pr. R., 171, 174, 175. See note to section 142 of this code. § 165. [142.] Answer in such cases.—In the actions mentioned in the last section, the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances. In slander for charging the plaintiff with being a thief, an answer which merely stated, that what the defendant said of the plaintiff was true, was overruled as bad, the court holding that under section 128 (now 149,) an answer setting up a justification must contain a statement of the facts which constitute the defence in ordinary and concise language. Anon. 3 Pr. R., 406. Actions for slander, it is said, are in the nature of penal actions. 3 Johns, 180. 9 ib., 36. 2 Burr., 66. 4 Cow., 37. Salk., 644. And it is said that in such an action, a party may decline to answer on the ground that he would criminate himself. Bailey v. Dean, 5 Barb. S. C. R., 297, 304, and see Hill v. Muller, 2 Sand. S. C. R., 684. Clapper v. Fitzpatrick, 1 Code Rep., 69. § 166. In actions to recover property distrained for damage, answer need not set forth title.—In an action to recover the possession of property distrained doing daniage, an answer that the defendant or person by whose command he acted, was lawfully possessed of the real property upon which the distress was made, and that the property distrained was at the time doing damage thereon, shall be good, without setting forth the title to such real property. § 167. [143.] What causes of action may be joined in the same action. The plaintiff may unite several causes of action in the same complaint, where they all arise out of, 1. Contract, express or implied; or, 2. Injuries with or without force, to the person; or, 4. Injuries to character; or, 5. Claims to recover real property, with or without dam |