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the whole is entirely unavailing, is an objection that can only be taken by demurrer. Fabricotti v. Launitz, 1 Code Rep., N. S., 122. Where a defendant set up in his answer the pendency of another action for the same cause between the same parties, as a defence, and the plaintiff thereupon discontinued such suit, and replied that the suit mentioned in the answer “is discontinued,” the trial was without a jury, and defendant admitted the truth of the reply, no proof was offered, it was held that the plaintiff was entitled to judgment; the reply was true at the time it was put in, and was a sufficient answer to the defence set up in the auswer. Beals v. Cameron, 3 Pr. R., 414. Where an answer and demurrer on one paper—the demurrer immediately following the answer—were served, and a reply served to the answer, and the demurrer noticed for argument, but before the expiration of the twenty days from the service of the reply an amended answer was served, being an exact copy of the original, except the demurrer, which was left out, held, that the plaintiff was not bound to reply to the amended answer. The reply already served was sufficient—the answer in fact was not amended. Howard v. Michigan Ins. Co., 3 Code Rep., 215. Where a complaint and auswer formed an issue of law, which did not bring up the merits, and plaintiffs attorney alleged that through mistake he omitted to reply, he was allowed to reply (on terms), after the cause had been heard before a reseree. Merritt v. Slocum, I Code Rep., 68. By laws of 1846, p. 305, it is enacted, that in every action in which the defendant shall plead any discharge from his debts, or from arrest, or imprisonment, obtained under and by virtue of the act of Congress entitled, “a law to establish a uniform system of bankruptcy throughout the United States,” the plaintiff may reply generally, that such discharge or exemption was obtained by fraud, and pray the same may be inquired of by the country, and may annex thereto a notice specifying the several acts of fraud, evidence of which will be given on the trial, to invalidate such discharge or exemption, which shall entitle such plaintiff to give evidence of the matters so specified on the trial, in the same manner as if they had been specially replied. Is this law, so far as it authorizes a general reply and notice, repealed by the code? The plaintiff can demur to an answer, only for defects in respect of the new matter set up therein, by way of avoidance. Smith v. Greenin, 2 Sond. S. C. R., 702. 3 Code Rep. 206. But, per Barculo, J., “The counsel is mistaken in supposing that a demurrer will not lie against a denial in an answer, as well as to “new matter.” The word “same, in section 153, refers to the word “answer,’ and not to the words “new matter.’” Hopkins v. Everett, 3 Code Rep., 150. Immaterial matter cannot be demurred to, nor is it a ground of demurrer that an answer does not deny any allegation of the complaint in manner prescribed by section 149. For if the plaintiff be right in supposing that to be the case, he is, by section 168, saved the necessity of proving such fact upon the trial. Smith v. Greenin, 2 Sand. S. C. R., 702. 3 Code Rep., 206.
§ 154. Motion for judgment on answer.—If the answer contain a statement of new matter constituting a defense, and the plaintiff fail to reply or demur thereto within the time prescribed by law, the defendant may move on a notice of not less than ten days, for such judgment as he is entitled to upon such statement, and if the case require it, a writ of inquiry of damages may be issued.
All the papers needed for a motion under this section are, summons, complaint, and answer, and the notice of motion. The motion, clearly, can only be made in a case where the answer relies on new matter which constitutes a defence. Per Willard, J., in Brown v. Spear, 5 Pr. R., 147. And where the deleudants interposed an answer denying the plaintiff's case as made by the complaint, and statiug matter which constituted no defence and needed no reply, and the plaintiff not replying, the defendants moved for judgment, held, that the defendants had mistaken their remedy; they should have noticed the cause for trial. 1b.
This section seems inconsistent with sections 153 and 168, as amended 1852.
$155. Demurrer to reply.—If a reply of the plaintiff to any defence set up by the answer of the defendant be insufficient, the defendant may demur thereto, and shall state the grounds thereof.
General Rules of Pleading.
Szction 156. Pleadings to be verified. 157. Pleadiugs, how verified. 158. How to state an account in pleading. 159. Pleadings to be liberally construed. 160. Irrelevant or redundant matter to be stricken out. 161. Judgments, how to be pleaded. 162. Conditions precedent, how to be pleaded. 163. Private statutes, how to be pleaded. 164. Libel and slander, how stated in complaint. 165. Answer in such cases. 166. In actions to recover property distrained for damage, answer need
not set forth title.
167. What causes of action may be joined in the same action.
$156. [133.] (Amended 1849,-1851.) Pleadings to be verifted.—Every pleading in a court of record must be subscribed by the party, or his attorney; and when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also. This section, in the code of 1849, was in these words—“No other pleading shall be allowed than the complaint, answer, reply, and demurrers.” The present section was formerly part of section 157. The signature of a defendant, to a verification to a pleading without more, is sufficient subscription to a pleading. Hubbell v. Livingston, 1 Code Rep., 63. Where a complaint is not verified, and a verified answer is served, if the plaintiff amend his complaint, must he verify it? We think he need not. § 157. [133.] (Amended 1849–1851.) Pleadings, how verified—The verification must be to the effect, that the same is true to the knowledge of the person making it, except as to those matters stated on information and belief, and as to those matters he believes it to be true, and must be by the affidavit of the party, or if there be several parties united in interest, and pleading together, by one at least of such parties acquainted with the facts, if such party be within the county where the attorney resides, and capable of making the affidavit. The affidavit may also be made by the agent or attorney, if the action or defence be founded upon a written instrument for the payment of money only, and such instrument be in possession of the agent or attorney, or if all the material allegations of the pleading be within the personal knowledge of the agent or attorney. When the pleading is verified by any other person than the party, he shall set forth in the affidavit his knowledge, or the grounds of his belief on the subject, and the reasons why it is not made by the party. When a corporation is a party, the verification may be made by any officer thereof; and when the State or any officer thereof in its behalf, is a party, the verification may be made by any person acquainted with the facts. The verification may be omitted when an admission of the truth of the allegations might subjec the party to prosecution for felony. And no pleading can be used in a criminal prosecution against the party, as proof of a fact admitted or alleged in such pleading.
Before amendment of 1851 this section was as follows: “Every pleading in a court of record must he subscribed by the party or his attorney; and when any pleading in a case shall be verified by affidavit, all subsequent pleadings, except demurrers, shall be verified also ; and in all cases of the verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and as to those matters, that he believes it to be true. And where a pleading is v.rified, it shall be by the affidavit of the party, unless he be absent from the county where the attorney resides, or for some cause unable to verify it, or the facts are within the knowledge of his attorney or other person verifying the same. When the pleading is verified by the attorney or any other person except the party, he shall set forth in the affidavit his knowledge of the grounds of his belief on the subject, and the reasons why it is not made by the party. When a corporation is a party, the verification may be made by any officer thereof; and when the State or any officer thereof in its behalf is a party, the verification may be made by any person acuainted with the facts, except that in actions prosecuted by the attorney-general in behalf of the State, for the recovery of real property, the pleadings need not be verified.” The code of 1848, in the section corresponding to this (s.135), provided that every pleading except the demurrer should be verified, but the verification might be omitted when the party would be privileged from testifying as a witness to the same matter, and that no pleading was to be used in a criminal prosecution as evidence. Under that provision it was held that a complaint, answer, or reply, not verified by oath, might be treated as a nullity. Swift v. Hosmer, 1 Code Rep., 26. 3 Pr. R., 280. But the verification might be omitted when the matter contained in the pleading was such as might aid in fortning a chain of testimony to convict the party of a criminal offence, if properly receivable in evidence. Clapper v. Fitzpatrick, l Code Rep., 69. 3 Pr. R., 314. An answer verified in pursuance of this provision, and served 11th April, 1849, the day of the passage of the amended code, was held to be properly verified. Ganble v. Beattie, 4 Prst., 41. Upon section 157 of the code of 1849, before amendment, it was held that the defendant might verify his answer in a case where the complaint was not verified; and if he did so, the reply, if any, must be verified. Lin v. Jacquays, 2 Code Rep, 29. Levi v. Jacquays, 2 Code Rep., 69, 4 Pr. R., 126. A pleading should not be verified before the attorney of the party. Gilmore v. Hempstead, 4 Pr. R., 153. Anon., ib., 290. And for such a defect the remedy of the opposite party is by motion at the earliest opportunity, to set it aside; a delay will be deemed a waiver of the irregularity. Ib. A verification which stated that the party had read the pleading, and that “the same is true, according to the best of his knowledge and belief,” is not a sufficient verification. Van Horn v. Montgomery, 5 Pr. R., 328. The verification is defective unless the pleading or the affidavit be subscribed either by the party or his attorney. Laimbeer v. Allen, 2 Code Rep., 15. The signature of the party or attorney to the verification is a sufficient subscription of the pleading. Hubbell v. Livingston, 1 Code Rep., 63. See 9 Paige, 332. Where a complaint was verified by the bookkeeper of the plaintiff, and no reason assigned why it was not verified by the plaintiff, the defendant demurred thereto, and it was held that he had mistaken his remedy, and that his proper course would have been to move to set aside the complaint for irregularity. The verification forms no part of a pleading which can be considered on a demurrer. Webb v. Clark, 2 Sand. S. C. R., 647. Where a defendant in due time served an answer signed by his attorney and certified by a commissioner to have been signed by the defendant, in fact, however, neither the answer nor verification was signed by the defendant, the plaintiff's attorney treated the answer as a nullity, and without communicating with the defendant's attorneys, entered a default and perfected judgment against the defendant; on motion to set aside such judgment, it was held that the answer was defective, but that the paintiff's attorney should not have treated it as a nullity, until he had notified the opposing attorneys of the defect, and they had omitted to rectify it. Laimbeer v. Allen, 2 Sand. S C. R., 648. White v. Cummings, 1 Code Rep., N. S., 107. Where an infant is a party suing or defending by guardian, the attorney who conducts the suit may subscribe the pleadings. Hull v. Thacter, 2 Code Rep., 3. 3 Pr. R., 407, 409. Where the verification is made by the attorney instead of the party, the reasons must be stated why it is not made by the party. Fitch v. Bigelow, 5 Pr. R, 237. What is a sufficient statement of the ground of his knowledge or belief when a pleading is verified by the attorney Dixwell v. Wordsworth, 2 Code Rep., 1. A defect in the verification must be taken advantage of by motion, to set aside the pleading for irregularity. Webb v. Clark, 2 Code Rep., 16. Gilmore v. Hemp. stead, 4 Pr. R., 153. A party is to be governed by the copy of the pleading delivered to him, and he need not search the office to ascertain if the original is on file, or if the paper served is a copy of the original. Smith v. Wells, 6 Johns. R., 286. Where an answer requires to be verified, a copy of the verification and of the signature of the person before whom the affidavit was sworn must be served with the copy answer, or the service will be irregular, and the party on whom it is served may either return it or move to set it aside. He has a right to assume that the original is not sworn. Graham v. McCoun, 5 Pr. R., 353. 1 Code Rep. N. S., 43. The verification is no part of a pleading. George v. McArmy. 1 Code Rep. N. S., 318. Where the several parties to a bill or note are sued in one action, and the com plaint is verified, and they make a joint answer, it must be verified by or on behalf of each defendant. Alfred v. Watkins, 1 Code Rep. N. S., 343. In Southworth v. Curtis, 1 Code Rep. N. S., 412; 6 Pr. R.,271, the verification of the complaint was as follows: P. F. S., one of the plaintiffs being sworn says, “That he has heard the soregoing complaint read, and that it is true, except &c.” To this it was objected, that the verification should have stated that the complaint was “true to the knowledge of deponent;” but the verification was held sufficient, and per Hubbard, J., it seems clear that when a party swears positively that a pleading is true, he must be understood as swearing that he knows it to be true.” Where the verification to a complaint was without a venue in the margin, and the residence of the commissioner was not stated, nor was there any thing to show where it was sworn, held that the verification was a nulity. Lane v. Morse, 6 Pr. R., 394. The defendant was under no obligation to return such complaint as defective. He had a right to, and ought to retain it, and might serve an answer without a verification. Ib. Where the defence is not founded upon a written instrument, for the payment of money only in the possession of the attorney, he must have personal knowledge of all the material allegations of the answer, to enable him to verify. Hunt v. Meacham, 6 Pr. R., 400. It was held otherwise by the superior court, in Latson v. Leferre, 10 Leg. Obs. 246. Under the code of 1849, it was held that where an answer to the allegations of the complaint, or some of them, might subject the defendant to a criminal prosecution, he need uot admit or deny such allegations on oath. He must put in a sworn answer, in which he may state that by answering on oath the particular allegations specified, he may subject himself to a criminal prosecution, and as to the residue of the complaint he will answer in the usual manner. Such an answer will be deemed to put in issue the allegations of the complaint, which the defendant excuses himself from answering. Hill v. Muller, 2 Sand. S. C. R., 684. 3 Code Rep., 199; White v. Cumming, 1 Code Rep. N. S., 107; and see Bailey v. Dean. 5 Barb S. C. R., 297. And under the practice in equity a party was not compelled to answer where his answer would criminate him. 1 Johns Ch. R., 65. 2 Paige, 599. 1 Hayw., 168. 1 Root, 310. Where the pleading is subscribed by the attorney, it seems it is not necessary, although it is proper, that he should add the word attorney after his signature. Bergen v. Boerum, 2 Cai Rep., 256. Where an answer is sworn out of the State, it must be authenticated in the manner required for authenticating affidavits taken out of the State. In such cases it must be authenticated as follows: 1. It must be certified, by some judge of a court having a seal, to have been subscribed and taken before him, specifying the time and place where and when taken. 2. The genuineness of the signature of such judge, the existence of the court and the fact that such judge is a member thereof, must be certified by the clerk of the court, under the seal thereof. 2 R. S., 2d ed., 317, s. 33. 12 Wend., 223. 3 Hill, 461. Au answer put in by a defendant residing out of the State, must be sworn before a judge of some court having a seal, who is actually a member of such court. And that fact must be certified by the clerk of such court. A master extraordinary in England, has no power to take the oath of a person residing there to an answer, in an action pending in this State. Lahens v. Felden, 1 Barb. S. C. R., 22. In case of a foreigner who does not understand the English language, an order may be obtained, of course, for an interpreter; and the answer being written in the language of such foreigner, a translation in English is to be annexed. The interpreter being sworn to interpret truly, conveys to the defendant the language of the oath. The interpreter is also sworn to the fidelity of the translation. The jurat is to be adapted to the circumstances of the case. As to the mode of taking the answer of a person deaf and dumb, see Reynolds v. Jones, 2 Dan. Ch. Pr., 280. Where a pleading is verified by a person unable to read or write, the party taking the affidavit should first read over the pleading and affidavit to such party, and explain the same to him, and state those facts in the jurat. See the form, Townshend's Forms, p 2. Pleadings are to be legibly written, and the folios, where they exceed two folios in length, distinctly marked. Supreme court rules, rule 41 ; and the attorney's name and residence indorsed. Ib., rule 5. Formerly, a party was required to state in his pleading, the name of the attorney by whom he appeared. 2 R. S., 273, s. 27, [351, s. 26.] But where the suit was prosecuted by a law firm, it was enough that the name of the firm prosecuting or defending the suit was stated; both Christian and surnames needed not to be given. 12 Wend, 424. Is this provision still in force?
§ 158. [135.] (Amended 1849–1851.) How to state an account in pleading.—It shall not be necessary for a party to set forth in a pleading, the items of an account therein alleged ; but he shall deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, which of the pleading is verified, must be verified by his own oath, or that of his agent or attorney, if within the personal knowledge of such agent or attorney, to the effect that he believes it to be