stricken out as redundant. Whether this principle is maintainable to its full extent, seems, however, somewhat doubtful, and even if it should be held to be so, leave to amend would doubtless be granted.

The leading case on the stricter side of the question is, however, Dollner v. Gibson, 3 C. R. 153, 9 L. O. 77, before commented on, but now reversed by the general term, as before noticed. Floyd v. Dearborn, 2 C. R. 17, and Pattison v. Taylor, 8 Barb. S. C. R. 250, 1 C. R (N. S.) 174, are also decisions in which the same severely technical principles were carried out, but the authority of which is now more than doubtful.

The law as laid down in Dollner v. Gibson, and likewise in the other cases above cited, seems to militate against the conclusion of the learned judge who decided the former, in Ingersoll v. Ingersoll, 1 C. R. 102, where the law on the subject is laid down as follows:

"The true test of immateriality of averments in a complaint, is, to enquire whether such averments tend to constitute a cause of action, or would, if taken as true, be material to the cause of action; and if they do, they will not be stricken out."

In Boyce v. Brown, 7 Barb. S. C. R. 80, the more liberal rule was laid down in the following terms:

"The pleadings are to be liberally construed with a view to substantial justice, and the court is to disregard errors and defects, which do not affect the substantial rights of the party." "It is the duty of the courts, as far as may be, to carry that change into effect, in good faith and in all its spirit. This must be done by liberal amendments, and by the disregard of everything formal."

In Whitney v. Waterman, 4 How. 313, a similar tendency was shown, in holding that an order leaving in immaterial matter, was not appealable, though an order striking it out might be so, if made to appear that such matter involved the merits.

The courts have, in fact, generally shown a disposition rather to discourage motions under this section, than the reverse. An answer in which a valid defence is defectively pleaded, cannot be held to be either irrelevant or redundant, and the plaintiff is not bound to take any objection to it on either of those grounds. -Gold v. Homer, 1 C. R. (N. S.) 356.

In one class of cases, it has been insisted that, in construing this section, full effect must be given to the word "aggrieved,"

and that, before a party can move to strike out matter from his adversary's pleading, he must show that he is "aggrieved" thereby.- White v. Kidd, 4 How. 68; Hynds v. Griswold, 4 How. 69. In the latter case, the doctrine is laid down most unequivocally, and the learned judge was also inclined to think that a defendant is at liberty to state in his answer, any facts which it would be material for him to prove at the trial, though such facts may not constitute a complete defence.

The general doctrine of these two cases, is sustained by subsequent decisions, though with some qualifications.

In Bedell v Stickles, 4 How. 432, 3 C. R. 105, the law as laid down in the two last cases, is mentioned with approbation, and the unfavorable disposition of the court towards these motions, is strongly evinced; it is there laid down that the rule to be acted upon by the court, should be in analogy to that of the old supreme court, in relation to frivolous demurrers, and that therefore in all cases where there was any question, or ground for argument about the matter being irrelevant or not, the application should be refused. The matters complained of must, therefore, under the authority of this case, be clearly and undoubtedly irrelevant, or the party will be left to his demurrer.

The doctrine of the above decisions is also strongly upheld by those of Burget v. Bissell, 5 How. 192; 3 C. R. 215; and The Rochester City Bank v. Suydam, 5 How. 216; and Hill v. McCarthy, 3 C. R. 49, before fully cited in the observations as to averments in pleading. See also Esmond v. Van Benschoten, 5 How. 44; and Carpenter v. West, 5 How. 53; Rensselaer and Washington Plank Road Co. v. Wetsel, 6 How. 68; 1 C. R. (N. S.) 104; Benedict v. Dake, 6 How. 352.

The point, therefore, that, on motions of this nature, the old chancery rules, with reference to exceptions for impertinence, will still be substantially carried out; although with the modifications necessary in consequence of the fusion of law and equity into one system, (see Williams v. Hayes, 5 How. 470, below cited,) seems to be established by the above series of decisions. In Carpenter v. West, however, the doctrine in White and Kidd, and Hynds v. Griswold, as to the necessity of its being shown that the party is actually aggrieved by the matter objected to, is more strictly defined, and in some respects qualified.

"My own impressions are," says the learned judge, in that case, "that, as to scandalous and impertinent, irrelevant, and re

dundant matter, the Code has not in any respect changed the former practice in equity cases." "Its effect upon 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 a 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." The learned judge then proceeds to lay down the following limitations of the above doctrine: " If relevant it cannot be scandalous, Lord St. John v. Lady St. John, 11 Vesey, 526, Story. P. L. 269, and a few unnecessary words will not make a pleading impertinent--Du Pont v. De Tastet, 1 Turn. and Russ. 486; Des Places v. Goin, 1 Edwd. C. R. 350-and courts should be liberal, espepecially 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." "Chancellor Kent thought the best test by which to ascertain whether the matter is impertinent is, to try whether the subject of the allegations could be put in issue, and would be matter proper to be given in evidence between the parties."-Woods v. Morrell, 1 J. C. R. 106.

The cases of Shaw v. Jayne, 4 How. 119, and Knowles v. Gee, 4 How. 317, are referred to by the learned judge in the course of his opinion. See notice of those cases, and of others bearing on the same point, in the previous chapter on the subject of averment. The general principle is clear that, in actions formerly of strictly legal cognizance, averments of probative facts are improper, and will, as a general rule, be struck out as redundant. In actions of an equitable nature, a greater latitude will be permitted, but, even in these, unnecessary averments of this nature, only going to collateral circumstances, and not tending to establish the main cause of action, will also be objectionable. See in particular this doctrine as laid down in Wooden v. Waffle, 6 How. 145, there cited. Statements in pleading may be redundant, and stricken out as such, without being either impertinent or irrelevant.

To return from this digression, the practice of the superior court in motions of this nature is thus laid down in 2 Sandf.

S. C. R. 682. Anon. "On an appeal from chambers the court decided that, on a motion to strike matter out of a pleading as irrelevant, redundant, or frivolous, it would be governed by the consideration whether it was in any wise questionable as to the matter being good in point of law. If there were any reasonable doubt of the matter being pertinent, the court should put the party to his demurrer. In respect of matter palpably redundant or frivolous, the court will strike it out of course." 26th Jan., 1850.

The same principles had been previously laid down by the same court in Corlies v. Delaplaine, 2 C. R. 117; 2 Sandf. S. C.

R. 680.

In Williams v. Hayes, 5 How. 470, 1 C. R. (N. S.) 148, the views on this subject as taken in Carpenter v. West, are fully concurred in, and the qualifications of the doctrine in Hynds v. Griswold, assented to, by the learned judge who pronounced that decision. "It is not every unnecessary expression or redundant sentence which should be expunged on motion. But where entire statements are introduced, upon which no material issue can be taken, the opposite party may be aggrieved' by allowing them to remain in the pleading. If not answered, it may be claimed that such allegations are admitted, and, if denied, the record is embarrassed with immaterial issues. In such cases, it is the right of the adverse party to have the matter improperly inserted in the pleading removed, so that the record, when complete, shall present nothing but the issuable facts in the case. This I understand to be the true spirit and general policy of the system of pleading prescribed by the Code." In a previous part of the opinion, the learned judge laid down the general criterion in such cases as being, whether the allegation" can be made the subject of a material issue. If it can, it has a right to be found in the pleadings; if not, it ought not to be there." See the same principles laid down in The Rensselaer and Washington Plank Road Company v. Wetsel, 6 How. 68, and Stewart v. Bouton, 6 How. 71; 9 L. O. 353; 1 C. R. (N. S.) 404.

The converse of this last proposition is laid down in Averill v. Taylor, 5 How. 476, where it was held that no part of a pleading ought to be stricken out, if it can in any event become material. A prayer for relief introduced into the answer in that case, was, on those grounds, refused to be stricken out. The plaintiff could not be prejudiced by it, inasmuch as it did not require a reply, and no issue could be taken on it.

In Fabricott v. Launitz, 3 Sandf. S. C. R. 743; 1 C. R. (N. S.) 121, before cited, irrelevant matter is defined to be, that "which has no bearing on the subject of the controversy, and cannot affect the decision of the court." See also Bright v. Currie, 10 L. 0. 104.

Matter inserted merely for the purpose of enabling the plaintiff to obtain an injunction, was held to be irrelevant, and stricken out in Putnam v. Putnam, 2 C. R. 64. See also Milliken v. Cary, 5 How. 272; 3 C. R. 250: but these cases seem to be overruled by Wooden v. Waffle, Howard v. Tiffany, Minor v. Terry, and others before cited, in favor of the more liberal doctrine.

The same was also done by the superior court in Lee v. Elias, 3 Sandf. S. C. R. 736, 1 C. R. (N. S.) 116, with respect to averments of fraud, inserted in the complaint for the express purpose of grounding an arrest, under sec. 288. Considerable division of opinion had, however, previously prevailed on this point as to which, see observations hereafter, under the heads of complaint and arrest. See, in particular, Masten v. Scovell, 6 How. 315, there cited.

An allegation that a party had unreasonably refused to make partition by deed, with a view to charge him with costs, was held to be irrelevant in McGowan v. Morrow, 3 C. R. 9.

In The Stockbridge Iron Company v. Mellen, 5 How. 439, a complaint against a common carrier, containing what amounted to the six different counts of a declaration under the old practice, was held to be clearly bad; and, unless the plaintiff amended within twenty days, all the causes of action, except the first, were ordered to be stricken out as redundant or irrelevant.

Although a defence may not be primâ facie sustainable, it does not necessarily follow that it can be stricken out as irrelevant : thus, in Hill v. McCarthy, 3 C. R. 49, the setting up an equitable title in an answer in ejectment, was refused to be stricken out, though the court considered that the defence was not sustainable, and that the defendant ought to maintain a separate suit. See prior observations on this last principle.

In Howard v. Tiffany, 3 Sandf. S. C. R. 695; 1 C. R. (N. S.) 99, although the principles as to the latitude of averment in equitable actions are liberally laid down, still certain statements of probative facts appear to have been stricken out as irrelevant, though the particulars of those statements are not given in the report thus showing that the same general rules prevail