M'Mahon, adm'r, &c., of Ruth S. Harrison, dec'd, agt. Allen.

plaintiff anything, or not. A judgment against this defendant will prejudice no one but himself. A judgment in his favor will prejudice no person not a party to the suit, not duly represented herein by the plaintiff.

Is it said, that a judgment herein against the defendant, for moneys collected by him as agent, may not protect him against the claim of the executor of John Harrison? The answer is twofold:-First. This objection was to be raised, if at all, by the defendant himself; and if he have not set it up as a defence, he has waived it by the express provisions of the Code. And again if he does not seek this protection, it is not the duty nor right of the plaintiff, in this stage of the controversy, to force it upon him against his will. Besides, if it be conceded that the defendant might, for his own protection, have required the representative of John Harrison to be made a party, and he be not now held to have waived that objection, then the plaintiff was premature in bringing his suit as above suggested, and ought not now to be placed rectus in curia at the defendant's expense.

Still further; this protection to the defendant is not what is meant by the case suggested, viz., "when a complete determi nation of the controversy cannot be had without the presence of other parties." That case is, I think, where there are persons not parties whose rights must be ascertained and settled, before the rights of the parties to the suit can be determined. Doubtless there are many other cases, in which a defendant may require other parties to be brought in, so that the judg ment of the court in the action may protect him against the claims of such other parties: but this is his own privilege, and he may waive it.

If by the claim that a complete determination of the controversy cannot be had without the presence of the executor of John Harrison, is urged on the ground that this defendant, being such executor, is liable in the one capacity or the other, and so there is propriety in bringing in the whole question into one suit, it may properly be answered—

First. That to bring him in to charge him as executor, would

M'Mahon, adm'r, &c., of Ruth S. Harrison, dec'd, agt. Allen.

be to charge him in a suit commenced before he was liable to be sued, i. e. to enable the plaintiff to recover on a cause of action which, when the suit was brought, had no existence.

Second. The plaintiff has already commenced a suit against him as executor; and that suit is now pending for the same cause of action, and there is no propriety in giving to the plaintiff the privilege of litigating the same matter here, while he is prosecuting such other suit. Nor can we, upon the plaintiff's application, consolidate the two suits. He has chosen his own course in this respect, and the estate of John Harrison ought not to be subjected to the double litigation.

The circumstance that the defendant is himself the executor of John Harrison, does not alter the case in these respects. His rights, in these separate characters, are distinct, and his relations to this plaintiff, as well as to those who are interested in the estate of his testator, are distinct, as much so as would be those of himself and the executor, if the executorship were vested in a third person. How far a complaint seeking to charge the defendant individually, and also as executor, can be sustained under § 167 of the Code, it is not perhaps necessary for me to say. But various decisions might be referred to, to show that the causes of action cannot be united.

So also as to the question whether, under any and what circumstances, the agent or attorney in fact of an executor can be made liable directly to the administrator de bonis non, for moneys collected for such executor in progress of his administration, and whether the moneys thus collected can in equity be identified and withdrawn from the estate of the deceased executor, and from the claims of his other creditors, if any there be, need not be passed upon here. If there are difficulties in the way of the plaintiff's recovery, resulting from the answer to such inquiries, they may show that the plaintiff has misconceived his remedy, but that is all.

It was intimated, on the argument, that it was only sought by the supplemental complaint, to make the executor "a formal party," and that no decree was sought against him as executor. The prayer, it is true, is, that the plaintiff may have

M'Mahon, adm'r, &c. of Ruth S. Harrison, dec'd, agt. Allen.

judgment against the defendant individually for said amount, but adds also the prayer, "that this court may settle and determine, in the same proceeding and trial in this court, the whole controversy now subsisting between the plaintiff and defendant," and for other and further relief, &c. This prayer is comprehensive enough to amount to a consolidation of both suits, and to embrace any relief which the plaintiff, as against this defendant, in any capacity may claim. And I do not perceive either the necessity or propriety of calling in the executor as a "formal party." If the plaintiff had no cause of action when the suit was commenced, the adding of formal parties will not give him one. If his cause of action was perfect at that time, the absence of formal parties cannot prevent his recovery. It is not merely "formal parties" that the Code, § 122, requires the court to bring in. The absence of such parties is waived. If the presence of the executor is only required in order to conclude him in respect to the liability of the defendant to the estate of John Harrison for the same moneys, then, as above suggested, the plaintiff cannot force that protection upon the defendant in this stage of the controversy against his will, even if he might have been permitted to make such executor a defendant as a proper party in the first instance.

I cannot perceive any sufficient reason for granting the motion, unless it be founded in the idea that the plaintiff may not establish his claim against the defendant individually, and possibly may show that, as executor of John Harrison, the defendant is liable, and that therefore he ought to be saved the costs of this suit, by bringing in the whole controversy into one litigation, notwithstanding another suit is pending against the defendant in his representative character. Such a reason the plaintiff does not, and would not urge; and if he did, what I have above suggested seems to me to dispose of it.

I am constrained to conclude that the motion should be denied; but as it was, to some extent at least, made in reliance upon the recommendations of the referee, the defendant's costs of the motion, $10, should abide the event of the suit.

Ordered accordingly.

Moffatt agt. Pratt.

SUPREME COURT.

EBER MOFFATT agt. ZADOCK PRATT.

What matters considered irrelevant and redundant in the statement in the complaint of the cause of action, for the possession and conversion of personal property.

(The pleader, in this case, seems to have entertained enlarged views in reference to the description of the CAUSE OF ACTION, and to have exercised quite a liberal indulgence in applying consequences to the defendant.)

Albany Special Term, July, 1855.

MOTION to strike out, &c.

The complaint stated that one Hiram Cumming was pos sessed of about 500 prints, struck from a certain steel-plate engraving, originally designed to represent the form and features of the celebrated British statesman Sir Robert Peel, in a standing posture, and whose head was decapitated, or struck off, by a certain curious piece of mechanical necromancy, and the head of the defendant, the Honorable Zadock Pratt, substituted therefor, at his special instance and request, and under his dictation and direction, with which he was so well pleased, that he contrived to get into his possession the said prints, which the said Hiram Cumming duly sold to the plaintiff for a good and sufficient consideration; and which, after such sale and transfer, and before the commencement of this action, the defendant wrongfully converted to his own use, by distributing in divers counties and different sections of this state, to be stuck up in the pot-houses, bar-rooms, groceries, oyster saloons, public libraries and legislative halls, for the purpose of exhibition, so that the enlightened freemen of the empire state would become so enamored of his august personage as to bear him triumphantly into the executive chair, and make him governor of a mighty commonwealth, the said prints still being the property of the plaintiff, and he being entitled to the possession thereof. Wherefore the plaintiff demands judgment against the defendant for $500, the value of the prints.

Moffatt agt. Pratt.

The defendant moved to strike out, as irrelevant and redundant, those parts of the complaint which are printed in italics.

THOMAS SMITH, for plaintiff.

W. H. PECKHAM, for defendant.

HARRIS, Justice. The subject of the action is certain prints, which the plaintiff alleges the defendant had wrongfully converted to his own use. It was proper that the plaintiff should describe the property thus converted. He has chosen to do so by referring to the origin and history of the engraving from which the prints had been struck. The description is sufficiently distinct and intelligible. It might, undoubtedly, have been stated more briefly, and, perhaps, in terms less offensive to the defendant, but this was a matter of taste, rather than of legal necessity.

So far as the matter of the complaint embraced in the motion tends to furnish a description of the subject of the action, it cannot be regarded as either irrelevant or redundant. But I think it was quite unnecessary for the plaintiff to state that the "mechanical necromancy," by which the head of Sir Robert Peel was struck off, and that of the defendant substituted, was performed "at the special instance and request of the defendant, and under his dictation and direction." This part of the statement can hardly be considered as tending to identify the engraving from which the prints in question had been struck. It was obviously designed for an entirely different purpose-one unknown to the rules of pleading under any system of practice. This portion of the complaint, therefore, must be struck out, as wholly irrelevant.

And so must all that portion of the complaint specified in the second clause of the defendant's notice. It was enough for the plaintiff to allege that the prints had been wrongfully converted by the defendant to his own use. If the conversion should be denied by the defendant, it may, upon the trial, be allowable for the plaintiff to show that the defendant had distributed the prints in the manner stated, with a view to estabVOL. XII.

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