Waller agt. Raskan.

It

The causes of action being based, one in tort and the other in contract, are improperly united in one suit; but they are also each of them badly pleaded, inasmuch as they are not separately stated as separate causes of action, but are blended; and the two are stated together, as would only be proper, if they were intended to constitute but one cause of action. is contended that the defendant should have demurred, and that, on a demurrer, he would have found the natural and adequate remedy, but that he cannot have relief on this motion. I think a demurrer would perhaps have been preferable, but he has chosen a different course, and the question to be decided is, whether he can have the relief he seeks in this form of proceeding?

The pleading is doubtless bad, and must be purged; and it is the duty of the court to give the relief, if not inconsistent with the rules regulating the practice in this respect.

The motion proceeds on the theory, that the plaintiff, having planted himself on the contract, the matter of fraud and deceit is irrelevant. It certainly is so, on this theory; and I think that the practice of the defendant, in resorting to this motion, is correct, and should be sustained.

The plaintiff having thrown these facts together in his complaint, without stating in words, or indicating by any arrangement of them, whether they were designed as the basis of one or more causes of action, the defendant is at liberty to treat them as constituting, in the intent of the pleader, only one cause; and I think, moreover, that he may elect which of the causes he will consider as intended-whether that on the contract, or that in the tort; and that, having taken his position, he may require that all matters not relevant to that cause be stricken out. The rule, that where facts are so stated in a pleading as to leave it doubtful whether they are intended to constitute one or more causes of action or defences, the party against whom they are pleaded is at liberty to have all, not material to one cause of action or defence, stricken out as irrelevant, is salutary, and should be liberally applied.

In a case like the present, I think that the defendant should

Waller agt. Raskan.

be at liberty to avail himself of either this motion or a demurrer, notwithstanding the two proceed on opposite theories; that of the demurrer being, that plaintiff intended to state two causes of action; and that of the motion being, that he intended all the facts for one cause; and if he adopt the motion, he may elect which of the causes of action he will consider plaintiff as going on, either the contract or the tort, as he may please; and having elected, he may demand, that all matter not relevant to that cause, be stricken out.

It is true, that after striking out this, other matter, liable to the same objection, remains in the complaint; and it is also true, that, with this matter out, the complaint will be demurrable-the contract counted on being within the statute of frauds; but neither of these is a good reason for retaining the objectionable matter; nor is the latter a reason for requiring the defendant to move as to the matter constituting the other cause of action, viz., that on the guaranty, rather than this on the tort.

Courts, while they discourage unnecessary motions on the subject of practice, will never shut their ears to appeals like the present, for the correction of pleadings in matters of substantial importance; and where such correction is necessary to make it answer the ends of justice, in stating intelligibly and definitely the facts claimed to constitute a cause of action or defence, and thereby enabling the adverse party to know what he is to meet by his pleading and on the trial.

They will rather, in this manner, encourage and cultivate a more accurate and higher standard of pleading, by favoring and applying, beneficially to the party oppressed, the remedies he may invoke, so far as is consistent with established rules on the subject.

The order asked must be entered, with liberty to the plaintiff, within twenty days, to amend his complaint.

Glinsmann agt. Glinsmann.

SUPREME COURT.

HENRY C. GLINSMANN agt. SOPHIA H. GLINSMANN.

A decree for divorce on the ground of force or fraud cannot be granted, where it appears "that, at any time before the commencement of the suit, there was a voluntary cohabitation of the parties as husband and wife.” (2 R. S. 143, § 32.)

(Quere? Whether, to meet the requirements of justice in many cases, this statute does not need amendment, if the VOLUNTARY cohabitation mentioned, does not mean a KNOWLEDGE of the fraud.)

In this case, it would seem that the parties did not live together after the alleged fraud was discovered; and that the suit was thereafter immediately commenced.

New-York Special Term, July, 1855.

APPLICATION for a decree dissolving marriage contract for

fraud.

The plaintiff and defendant intermarried in December, 1847, and, as husband and wife, lived together until August, 1854. During this period they have had two children, one of whom is now living. The plaintiff asks for a decree dissolving the marriage contract upon the ground of fraud.

The alleged fraud consists in the defendant's having, prior to the marriage, and as an inducement to plaintiff to contract it, represented herself as a chaste woman, when, in fact, she was the mother of four illegitimate children; that she concealed such fact from the plaintiff prior to the marriage, and that he only discovered it in August, 1854.

for plaintiff.

for defendant.

COWLES, Justice. The decree must be denied. The statute expressly inhibits the granting of one under this state of facts. By 2 R. S. 143, § 32, it is provided, that "No marriage shall be annulled on the ground of force or fraud, if it shall appear

Graves & White agt. Lake.

that, at any time before the commencement of the suit, there was a voluntary cohabitation of the parties as husband and wife." Here there has been such cohabitation from 1847 to 1854, and two children born to the parties.

Judgment must be entered denying the prayer of the plaintiff, and dismissing his complaint.

DUTCHESS COUNTY COURT.

GRAVES & WHITE agt. LAKE.

In proceedings supplementary to execution, under § 292, it is not necessary that the debtor himself should be examined on oath concerning his property. The section allows the creditor an order, (after the return of execution unsatisfied,) “requiring such judgment-debtor to appear and answer concerning his property." This is simply a provision to bring him before the judge. The examination as to the property of the judgment-debtor, may be made by examination, under oath, of witnesses, or of the debtor as a witness, or both, or either of them.

Dutchess County, Dec., 1855.

PROCEEDINGS Supplementary to execution.

On the return of an execution unsatisfied, against the property of the judgment-debtor, an order was granted requiring the defendant to appear and answer concerning his property. On the return-day of the order the parties appeared; and the plaintiffs, after the examination of witnesses, (other than the defendant,) showing money in the possession of the judgment-debtor, independent of his earnings, within sixty days past, without examining the defendant on oath, rested their case. And the defendant moved for a dismissal of the order and the proceedings thereon, because the plaintiffs had not examined the defendant on oath concerning his property.

Graves & White agt. Lake

NELSON, County Judge. It is provided by § 292 of the Code, that when an execution against the property of the judgmentdebtor, issued, &c., is returned unsatisfied, the judgmentcreditor, at any time after such return made, is entitled to an order, "requiring such judgment-debtor to appear and answer concerning his property." Certainly, this does not require that the judgment-debtor must answer on oath. In fact, if this part of the section stood alone, I could discover no authority to administer to him an oath, or to compel him to testify. The order to appear and answer is only to bring him before the judge. If the foregoing words, included within the quotation marks, made it necessary for the plaintiff to examine the defendant on oath; then the provision contained in the same section, that on an examination under this section, the judgment-debtor may be examined in the same manner as a witness," would be unnecessary.

The whole object of this proceeding is to ascertain whether . the debtor has property not exempt from execution, in the hands of himself or of any other person, or due to him; all of which facts a plaintiff might be able to establish by witnesses, independent of the judgment-debtor; and the debtor himself might be unworthy of credit as a witness. If I am right, as to the object of the proceeding, why, then, should the plaintiff be required, in a case like the present, to examine the judgmentdebtor on oath? Certainly, there can be no necessity for it.

The words, "on an examination under this section," means on an examination as to the property of the debtor, by calling witnesses, or by calling, swearing and examining the debtor, as a witness, or both, or either, and not simply the examination of the judgment-debtor on oath, concerning his property.

The motion must, therefore, be denied.