The plea of the defendant, in this Case, objected to by the plaintiff, and moved to be treated as a nullity and stricken from the record, is certainly essentially bad — but it was not foreign to the action. To justify striking out a plea, on motion, according to the case of Morgan vs. Rhodes, it is not sufficient, that it is bad, but it must be of matter wholly irrelevant to the action. We believe the correct course with such a plea as the one objected to below, would be, to demur to it.- The Court below, we ate bound to believe, would have sustained a demurrer, although not willing to strike it out, on motion. We can see no error in refusing the motion.
Judgment affirmed,