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Rensselaer and Washington Plank Road Co. agt. Wetsel.

consider. But can those proceedings, whether legal or illegal, entitle the defendant to recover damages of the plaintiff? If the plaintiff has not complied with the terms upon which the defendant agreed to take and pay for his stock, it may constitute a defence to an action for enforcing payment, but it furnishes no ground upon which a claim for damages can be predicated.

The motion to strike out redundant or irrelevant matter is analagous to a demurrer, and should, I think, be decided upon the same principles. If the matter can not be made the subject of a material issue, it has no business in the pleading, and ought not to be left there, to embarrass the opposite party and the court (see Williams agt. Hayes, 5 How. 470). Mr. Justice Hand has, in Carpenter agt. West (5 How. 53), aptly compared this motion to exceptions for impertinence, under the former chancery practice. With a single exception, I think the analogy will hold. That exception has already been noticed in several cases. It is, that, under the chancery practice, matters of evidence might properly be inserted in a pleading, while they are excluded by the theory of pleading adopted in the Code. Any matter which, upon exceptions for impertinence, under the chancery practice, would be struck out as unnecessary and impertinent, should, upon motion, be struck out as redundant or irrelevant. I know of no better test than that I have already mentioned, which is, to inquire whether the matter objected to, can, in any way, be made the subject, or form a part of a material issue in the action. The application of this rule is fatal to the matter embraced in this motion. I am satisfied that it contains nothing, out of which any issue material to the subject matter of the action can be framed. The motion must, therefore, be granted, with costs.

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Stewart and others agt. Bouton and another.

SUPREME COURT.

STEWART AND OTHERS agt. BOUTON AND ANOTHER.

Irrelevant and redundant matter struck out of an answer with costs, because it

did not come within the principle of pleading laid down in Williams agt. Hayes (5 How. 470). (See also the Renss, and Wash. Plank Road Co. agt. Wetsel, ante p. 68; also Lewis agt. Kendall, ante p. 59.)

Rensselaer Special Term, Feb. 1851. Motion to strike out redundant or irrelevant matter. The action is brought upon an undertaking executed by the defendants upon an appeal, pursuant to the 334th section of the Code. The appellant was one Beardsley, who had brought an action against the sheriff of Saratoga, to recover the posession of personal property which had been seized by the sheriff under an attachment against a non resident debtor. Beardsley had previously executed a mortgage upon the same property to one Stover, who, at the time the action was brought to recover the possession of the property, executed to the sheriff the undertaking required by the 209th section of the Code. Judgment having been rendered against Beardsley in the original suit, an action was brought against Stover upon his undertaking, in which judgment was also recovered. This judgment was compromised by Stover, and satisfied. The judgment against BeardsJey having been appealed, was affirmed, at a general term of the Supreme Court, and from the judgment so affirmed, an appeal was brought to the Court of Appeals, where the judgment was again affirmed. The plaintiffs, who are the assignees of the undertaking, claim to recover in this action, not only the costs upon the appeal, which amount to $97.47, but also interest upon the judgment affirmed, to the amount limited in the undertaking. The defendants in their answer, among other things, allege, that as sureties on the appeal, they are not liable to pay interest upon the judgment from which the appeal was taken, since no stay of execution was had or obtained; also that they executed the undertaking at the request and upon the indemnity of Stover; and that the property mortgaged to Stover was worth little or nothing

Stewart and others agt. Bouton and another.

over and above the amount for which it was mortgaged. These three allegations the plaintiffs ask to have stricken out of the

answer.

E. F. BULLARD, for Plaintiffs.

A. B. Olin, for Defendants. Harris, Justice.—I feel constrained, under the rule, which I understand now to be well settled, in respect to pleadings under the Code, to grant this motion. Neither allegation involves a material fact, or tenders to the opposite party a material issue. The first is merely a conclusion of law. The defendants may, perhaps, be right in supposing their liability is limited to the costs upon the appeal; but if they are, the question can not be the subject of an issue of fact. It is a conclusion of law which will arise

upon

tbe facts in the case. The other allegations present issues wholly immaterial and unnecessary to a proper decision of the case. Whether or not the undertaking was executed at the request and upon the indemnity of Stover, can not affect the liability of the defendants in this action, one way or the other. Nor can it, by possibility be material whether the property in question in the original suit was worth more or less than the mortgage to Stover (see Williams agt. Hayes, and The Rensselaer and Washington Plank Road Company agt. Wetsel, ante).

The motion must be granted; and although I am convinced that the irrelevant matter has been inserted in the answer through inadvertence, I feel obliged, in reference to the principles already established, and in view of the necessity of holding the profession to a more strict attention to those principles, in framing pleadings, to allow costs upon the motion also.

Hutchinson agt. Brand.

SUPREME COURT.

HUTCHINSON agt. BRAND. In an action for escape under a ca. sa. the sheriff can not avail himself of the

irregularity that the ca. sa, issued without a fi. fa. having been previously

issued and returned nulla bona. A sheriff can not be allowed to allege error either in the judgment or process

as an excuse for an escape. He can not avail himself of any defect or irregularity in the judgment or the

ca. sa. which might render them voidable on the application of the party. Unless the process is void, upon which the sheriff arrested the prisoner, he is

bound to detain him in custody, and is responsible in an action for escape, if he permits him to go at large. The distinction is between void and voidable

process. The power of a Superior Court of general jurisdiction to award process, is in

law, presumed. It is not necessary to state in the writ the cause of action at all, or to show

upon its face that it is such an action as would justify the issuing of a ca. sa. Where the command of the ca. sa. was to commit him (the prisoner) to jail,

until he shall pay the judgment according to law, instead of saying, commit him until he shall pay the judgment " or be discharged” according to law

held, that it was not void, because it was amendable. In an action for escape, the sheriff is liable for the whole judgment, and costs,

but not for interest on the judgment.

Madison Special Term, Feb. 1850. This is a civil action, and would have been debt before the Code, on the allegations contained in the complaint. The cause was tried before me at the late Madison circuit in December 1849, without a jury. The following facts were established by the evidence to wit: that on the 13th day of March 1849, Holmes Hutchinson recovered a judgment in the Supreme Court against Abram Lathrop for $67.77, for costs. The record was filed on the 13th day of March aforesaid, and the judgment docketed on the same day. The action was trover for taking and converting a yoke of cattle. On the 26th day of May 1849, the said Hutchinson by his attorney, William E. Lansing, caused a ca. sa. to be issued upon the judgment to the sheiff of the county of Madison; and the same was, on the 28th day of May aforesaid, delivered to Edwin Sherwin, a deputy of the defendant. The defendant at the time being

Hutchinson agt. Brand.

sheriff of the county, and also the acting jailer. Sherwin arrested Lathrop upon the ca. sa. and conveyed him to the jail and delivered him to the defendant who refused to receive him because of certain alleged defects in the writ; and the following were the objections stated by defendant at the time.

First.. Because the writ does not show that the judgment was rendered in an action wherein the defendant might be lawfully imprisoned on the judgment.

Second. Because the said writ commands the imprisonment of the defendant until he shall pay the judgment according to law. The defendant upon the trial raised the further objection that the writ did not show that an execution had been issued against the goods and chattels of the defendant; and because of these defects in the writ the defendant claims he had a right to discharge Lathrop from arrest without subjecting himself to an action for an escape. The defendant proved on the trial of the cause that Lathrop had no property at the time liable to execution, and was not able to pay the judgment.

W. E. LANSING, for Plaintiff.
T. JENKINS, for Defendant.

Mason, Justice.—The execution although in fact issued by the attorney, is supposed to be actually awarded by the court itself on the day of which it is tested, and upon the application of the attorney of the party entitled to it (4 Man. & Gra. 136, note "a." 1 Burr. Pr. 286).

The process then being considered as awarded by the court, and that court being a Superior Court of general jurisdiction, its power to award this process must be presumed till the contrary be shown (Borden vs. Fitch, 15 J. R. 141; Mills vs. Martin, 19 J. R. 33; Adkins vs. Bremer, 3 Cow. 206; Sutton vs. Edgarton, 9 Cow. 227; Bloom vs. Burdick, 1 Hill, 130; 5 Hill, 285). The intendment of law is that the court had jurisdiction to award this process (see cases above cited).

It has been repeatedly decided in this court that in an action for an escape of a prisoner in execution on a ca. sa. that the

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