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all the allegations of the counterclaim, the reply must contain a general denial of each and every allegation thereof, or an allegation that he has not sufficient knowledge or information, to form a belief, with respect to any allegation contained therein. Where he controverts a portion of the allegations, his reply must contain, either a specific denial of each allegation controverted by him, or an allegation that he has not sufficient knowledge or information, to form a belief, with respect to any of the matters stated therein. The reply may also set forth, in ordinary and concise language, without repetition, new matter, not inconsistent with the complaint, constituting a defence to the counterclaim.

TITLE 2.

ure to

§ 515. If the plaintiff fails to reply or demur to the counterclaim, Judgment the defendant may apply, upon notice, for judgment thereupon; and, upon failif the case requires it, a reference may be ordered, or a writ of inquiry reply. may be issued, as prescribed in chapter eleventh of this act, where the plaintiff applies for judgment.

court may

§ 516. Where an answer contains new matter, constituting a defence Cases by way of avoidance, the court may, in its discretion, on the defend- where the ant's application, direct the plaintiff to reply to the new matter. In require a that case, the reply, and the proceedings upon failure to reply, are reply. subject to the same rules as in the case of a counterclaim.

§ 517. A reply may contain two or more distinct avoidances of the Plaintiff same defence or counterclaim; but they must be separately stated and may se numbered, and must not be inconsistent with each other.

forth several avoidances in reply.

TITLE II.

Provisions generally applicable to pleadings.

SECTION 518. Application and effect of this chapter.

519. Pleadings to be liberally construed.

520. Pleadings to be subscribed; within what time to be served.

521. When defendant to serve copy answer on co-defendant.

522. Allegation not denied; when to be deemed true.

523. When pleading must be verified; and when verification may be
omitted.

524. Form and construction of certain allegations and denials in verified

pleadings.

525. Verification; how and by whom made.

526. Form of affidavit of verification.

527. When verification may be confined to a counterclaim.

528. Remedy for defective verification, or want of verification.

529. When defendant not excused from verifying answer to charge of fraud.

530. Private statute; how pleaded.

531. Account; how pleaded. Bill of particulars.

532. Judgments; how pleaded.

533. Conditions precedent; how pleaded.

534. Instrument for payment of money; how pleaded.

535. Pleadings in libel and slander.

536. Pleading mitigating circumstances, in action for a wrong.

537. Frivolous pleadings; how disposed of.

538. Sham defences to be stricken out.
539. Material variances; how provided for.

540. Immaterial variances; how provided for.
541. What to be deemed a failure of proof,

TITLE 2.

Application and

effect of

this chap

ter.

Pleadings

542. Amendments of course.

543. Amended pleading to be served; answer thereto.

544. Supplemental pleadings.

545. When a pleading may be excepted to; mode and effect or excepting. 546. Proceedings after exception.

547. Determination upon the exception; costs; when the attorney may be ordered to pay costs.

§ 518. This chapter prescribes the form of pleadings in an action, and the rules by which the sufficiency thereof is determined, except where special provision is otherwise made by law.

§ 519. The allegations of a pleading must be liberally construed,

to be liber- with a view to substantial justice between the parties.

ally con

strued.

§ 520. A pleading must be subscribed by the attorney for the party. Pleadings A copy of each pleading, subsequent to the complaint, must be served on the attorney for the adverse party, within twenty days after service of a copy of the preceding pleading.

to be subscribed;

within

what time

to be served.

When de

§ 521. Where the judgment may determine the ultimate rights of two or more defendants, as between themselves, a defendant, who fendant to requires such a determination, must demand it in his answer, and must, serve copy at least ten days before the trial, serve a copy of his answer upon the co-defend- attorney for each of the defendants, to be affected by the determina

answer on

ant.

true.

tion. The controversy between the defendants shall not delay a judgment, to which the plaintiff is entitled; unless the court otherwise directs.

Allegation § 522. Each material allegation of the complaint, not controverted not denied; when to be' by the answer, and each material allegation of new matter in the andeemed swer, not controverted by the reply, where a reply is required, must, for the purposes of the action, be taken as true. But an allegation of new matter in the answer, to which a reply is not required, or of new matter in a reply, is to be deemed controverted by the adverse party, by traverse or avoidance, as the case requires.

When pleading must be verified; and when

§ 523. Where a pleading is verified, each subsequent pleading, except a demurrer, or the general answer of an infant by his guardian ad litem, must also be verified. But the verification may be omitted, in a case verification where it is not otherwise specially prescribed by law, where the party may be pleading would be privileged from testifying, as a witness, concerning omitted. an allegation or denial contained in the pleading. A pleading cannot be used, in a criminal prosecution against the party, as proof of a fact admitted or alleged therein.

Form and construc

tion of cer

tions and

verified pleading.

§ 524. The allegations or denials in a verified pleading must, in form, be stated to be made by the party pleading. Unless they are therein tain allega stated to be made upon the information and belief of the party, they must be regarded, for all purposes, including a criminal prosecution, as having been made upon the knowledge of the person verifying the pleading. An allegation that the party has not sufficient knowledge or information, to form a belief, with respect to a matter, must, for the same purposes, be regarded as an allegation that the person verifying the pleading has not such knowledge or information.

Verifica

ion; how and by whom

made.

§ 525. The verification must be made by the affidavit of the party, or, if there are two or more parties united in interest, and pleading together, by at least one of them, who is acquainted with the facts, except as follows:

1. Where the party is a domestic corporation, the verification must be made by an officer thereof.

2. Where the people of the State are, or a public officer, in their

behalf, is the party, the verification may be made by any person acquainted with the facts.

3. Where the party is a foreign corporation; or where the party is not within the county where the attorney resides, and capable of making the affidavit; or, if there are two or more parties united in interest, and pleading together, where neither of them, acquainted with the facts, is within that county, and capable of making the affidavit; or where the action or defence is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney; or where all the material allegations of the pleading are within the personal knowledge of the agent or the attorney; in either case, the verification may be made by the agent of or the attorney for the party.

TITLE 2.

affidavit of

§ 526. The affidavit of verification must be to the effect, that the Form of pleading is true to the knowledge of the deponent, except as to the verificamatters therein stated to be alleged on information and belief, and that tion. as to those matters he believes it to be true. Where it is made by a person, other than the party, he must set forth, in the affidavit, the grounds of his belief, as to all matters not stated upon his knowledge, and the reason why it is not made by the party.

fication

may be

§ 527. Where the complaint is not verified, and the answer sets up a When vericounterclaim, and also a defence by way of denial or avoidance, the affidavit of verification may be made to refer exclusively to the counter- confined to claim. In that case, the last three sections are applicable to the affi- claim. davit and the counterclaim, as if the latter was a separate pleading,

a counter

§ 528. The remedy for a defective verification of a pleading is to Remedy treat the same as an unverified pleading. Where the copy of a plead- for defec ing is served without a copy of a sufficient verification, in a case where cation, or the adverse party is entitled to a verified pleading, he may treat it as verificaa nullity, provided he gives notice, with due diligence, to the attorney tion. of the adverse party, that he elects so to do.

want of

not ex

answer to

§ 529. A defendant is not excused from verifying his answer to a when decomplaint, charging him with having confessed or suffered a judg- fendant ment, or executed a conveyance, assignment, or other instrument, or cused from transferred or delivered money, or personal property, with intent to verifying hinder, delay, or defraud his creditors; or with being a party or privy charge of to such a transaction by another person, with like intent towards the creditors of that person; or with any fraud whatever, affecting a right or the property of another.

fraud.

statute;

§ 530. In pleading a private statute, or a right derived therefrom, it Private is sufficient to designate the statute by its title and the day of its how passage, or in some other manner with convenient certainty, without pleaded. setting forth any of the contents thereof.

pleaded.

§ 531. It is not necessary for a party to set forth, in a pleading, the Account items of an account therein alleged; but in that case, he must deliver to how the adverse party, within ten days after a written demand thereof, a Bill of par. copy of the account, which, if the pleading is verified, must be verified ticulars. by his affidavit, to the effect, that he believes it to be true; or, if the facts are within the personal knowledge of the agent or attorney for the party, or the party is not within the county where the attorney resides, or capable of making the affidavit, by the affidavit of the agent or attorney. If he fails so to do, he is precluded from giving evidence of the account. The court, or a judge authorized to make an order in the action, may direct the party to deliver a further account, where the one delivered is defective. The court may, in any case, direct a bill

TITLE 2.

Judg. ments; how pleaded.

how

of the particulars of the claim of either party to be delivered to the adverse party.

§ 532. In pleading a judgment, or other determination, of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction; but the judgment or determination may be stated to have been duly given or made. If that allegation is controverted, the party pleading must, on the trial, establish the facts conferring jurisdiction.

Conditions § 533. In pleading the performance of a condition precedent in a precedent; contract, it is not necessary to state the facts constituting performance; pleaded. but the party may state, generally, that he, or the person whom he represents, duly performed all the conditions on his part. If that allegation is controverted, he must, on the trial, establish performance. § 534. Where a cause of action, defence, or counterclaim, is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and state that there is due to him thereon, from the adverse party, a specified sum, which he claims. Such an allegation is equivalent to setting forth the instrument, according to its legal effect.

Instrument for pay: ment of money; how pleaded.

Pleadings in libel and slander.

Pleading mitigating circum

action for a wrong.

Frivolous pleadings; how disposed of.

§ 535. It is not necessary, in an action for libel or slander, to state, in the complaint, any extrinsic fact, for the purpose of showing the application to the plaintiff, of the defamatory matter; but the plaintiff may state, generally, that it was published or spoken concerning him; and, if that allegation is controverted, the plaintiff must establish it on the trial. In such an action, the defendant may prove mitigating circumstances, notwithstanding that he has pleaded or attempted to prove a justification.

§ 536. In an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, the defendstances in ant may prove, at the trial, facts, not amounting to a total or partial defence, tending to mitigate or otherwise reduce the plaintiff's damages, if they are separately set forth in an answer, containing a defence to the entire cause of action; but not otherwise. A defendant, in default for want of an answer, may, upon a reference or inquiry to ascertain the amount of the plaintiff's damages, prove facts of that description. § 537. A party, who has demurred to a pleading, or to a separate cause of action, counterclaim, or defence consisting of new matter, may, before taking any other proceeding thereupon, serve upon the attorney for the adverse party, a notice of at least five days, that the demurrer will be brought to trial, upon the ground of the frivolousness of the pleading or part of the pleading demurred to, before a judge of the court, either in court or out of court. A demurrer may be noticed for trial in like manner, upon the ground of the frivolousness of the demurrer. If the judge determines that the pleading or part of the pleading demurred to, or the demurrer, as the case requires, is frivolous, judgment must be given upon the demurrer, as if the trial had taken place at a term of the court. If the judge determines that it is not frivolous, an appeal cannot be taken from his decision; and the issue of law, arising upon the demurrer, must be tried, upon full notice, at the proper term. Upon an appeal from a judgment, rendered upon a determination that the pleading, or part of the pleading, demurred to, or the demurrer, is frivolous, the question is, whether the demurrer was well taken.

Sham defences to

be stricken out.

§ 538. A sham answer or a sham defence may be stricken out by the court, upon motion, and upon such terms as the court deems just.

TITLE 2. Material

vided for.

§ 539. A variance, between an allegation in a pleading and the proof, is not material, unless it has actually misled the adverse party, variances; to his prejudice, in maintaining his action or defence, upon the merits. how proIf a party insists that he has been misled, that fact, and the particulars in which he has been misled, must be proved to the satisfaction of the court. Thereupon the court may, in its discretion, order the pleading to be amended, upon such terms as it deems just.

variances;

540. Where the variance is not material, as prescribed in the last Immaterial section, the court may direct the fact to be found according to the evi- how prodence, or may order an immediate amendment, without costs.

vided for

deemed a

§ 541. Where, however, the allegation to which the proof is directed, What to be is unproved, not in some particular or particulars only, but in its entire failure of scope and meaning, it is not a case of variance, within the last two proof. sections, but a failure of proof.

ments of course.

§ 542. Within twenty days after a pleading, or the answer or de- Amendmurrer thereto, is served, or at any time before the period for answering it expires, the pleading may be once amended by the party, of course, without costs, and without prejudice to the proceedings already had. But if it is made to appear to the court, that the pleading was amended for the purpose of delay, and that the adverse party will thereby lose the benefit of a term, for which the cause is or may be noticed, the amended pleading may be stricken out, or the pleading may be restored to its original form, and such terms imposed as the court deems just.

be served;

§ 543. Where a pleading is amended, as prescribed in the last sec- Amended tion, a copy thereof must be served upon the attorney for the adverse pleading to party. A failure to demur to, or answer the amended pleading, within answer twenty days thereafter, has the same effect as a like failure to demur to, or answer the original pleading.

thereto.

pleadings.

§ 544. Upon the application of either party, the court may, and, in supplea proper case, must, upon such terms as are just, permit him to make mental a supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made; including the judgment or decree of a competent court, rendered after the commencement of the action, determining the matters in controversy, or a part thereof. The party may apply for leave to make a supplemental pleading, either in addition to, or in place of, the former pleading. In the latter event, if the application is granted, a provisional remedy, or other proceeding already taken in the action, is not affected by the supplemental pleading; but the right of the adverse party to have it vacated or set aside, depends upon the case presented by the original and supplemental pleadings.

pleading

may be ex

mode and

§ 545. Within twenty days after service of a copy of the complaint, When a or within ten days after service of a copy of an answer or reply, the adverse party may serve, upon the attorney subscribing the pleading, cepted to; an exception thereto, on the ground that it contains irrelevant, redund- effect of exant, or scandalous matter; or a denial or allegation which is so indefi- cepting. nite or uncertain, that the precise meaning or application thereof is not apparent; or that the form or contents of the pleading fail, in any respect, for which another remedy is not expressly prescribed by law, to comply with a requirement of this act, or of the general rules of practice. The exception must specify distinctly each objection to the pleading; and, also, if an objection relates to a particular allegation or denial contained therein, the particular paragraph or other portion deemed objectionable. The exception does not operate as a stay of

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