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 verified, 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 offi cer thereof in its behalf is a party, the verification may be made by any person acquainted 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 corresponding section 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 forming a chain of testimony to convict the party of a criminal offence, if properly receivable in evidence. Clapper v. Fitzpatrick, 1 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. Gumble v. Beattie, 4 Pr. R., 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. Jarquays, 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 book-keeper 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 plaintiff'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.

Where an infant is a party suing or defending by guardian, the attorney who conducts the suit, may subscribe the pleadings. Hill 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.

: Coun

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. Hempstead, 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 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. McCann, 5 Pr. R., 353. 3 Paige, 280.

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 not 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. Miller, 2 Sand. S. C. R., 684. 3 Code Rep., 199, 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.

A party by commencing an action by a complaint not verified does in effect waive the answer on oath. The waiver of an answer on oath had the effect under the practice in equity to prevent the plaintiff moving to take the answer off the file as false, has it still that operation? Denison v. Bassford, 7 Paige, 370.

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., 396, s. 33.

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, Townsheud'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 44; and the attorney's name and residence endorsed. Ib., rule 5.

Formerly, a party was required to state in his pleading, the name of the attorney by whom he appears. 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.)—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 if 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 true, or be precluded from giving evidence thereof. The court, or a judge thereof, or a county judge, may order a "further account" when the one delivered is defective, and the court may in all cases order a bill of particulars of the claim of either party to be furnished.

The amendments are the insertion of the words in italic, the words "a further account," are substituted for the words "a further or more particular bill." This section was substituted in the code of 1849, for section 135 in the code of 1848, and that section was held not to apply to the marine court. Winslow v. Kierski, 2 Sand. S. C. R., 304.

159. [136.] Pleadings to be liberally construed.--In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.

§ 160. [137.] Irrelevant or redundant matters to be stricken out. -If irrelevant or redundant matter be inserted in a pleading, it may be stricken out, on motion of any person aggrieved thereby.* And when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain, by amendment.

This section is substituted for section 137 in the code of 1848. In that code the section stopped at the point where the asterisk is placed; the remainder of the section is one of the amendments of 1849. By rule 43 of the supreme court rules, a motion, under this section, must be noticed before demurring, or answering the pleading objected to, and within twenty days from the service thereof. (See, Rule in Appendix.)

Noticing the cause for trial, is a waiver of the right to move under this section, Esmond v. Van Benschoten, 5 Pr. R., 44; and even before the promulgation of the above rule, it was held, overruling a previous decision to the contrary, Stokes v. Hager, 1 Code Rep., 84, that the objection under this section must be taken before the time to answer or reply expired. Isham v. Williamson, 7 Leg. Obs., 340. Corlies v. Delaplaine, 2 Sand. S. C. R., 680. 2 Code Rep., 117. And where a plaintiff obtained an order for further time to reply, and afterwards, before the expiration of such further time, moved under this section, it was held that he was too late, or had waived his right so to move. Ib. And where a motion to strike out matter as irrelevant or redundant was made within twenty days from the service of the last pleading, but not until after both parties had noticed the cause for trial, it was held, that by noticing a cause for trial, a party admits the sufficiency of his adversaries' pleading, and cannot afterwards move under the section. Esmond v. Van Benschoten, 5 Pr. R., 44.

Irrelevant or redundant matter must be such as cannot be reached by demurrer, and also prejudicial to the adverse party, to authorize it to be stricken out under this section. White v. Kidd, 2 Code Rep., 47. 4 Pr. R., 68. And generally where one good ground of defence is contained in the answer, so that the plaintiff cannot apply for judgment, on the ground that the whole answer is frivolous, the true mode of determining whether any particular defence is sufficient, is by demurrer. Ib. If in stating a defence, irrelevant or redundant matter be inserted, with that which is material, so that it cannot be reached by demurrer, this section provides that it may be stricken out, on motion, when the plaintiff would be prejudiced by suffering it to remain in the answer. Ib.

This section does not authorize the striking out every irrevelant or redundant expression. A party must be aggrieved or prejudiced thereby. Hynds v. Griswold, 2 Code Rep., 47. 4 Pr. R., 69. And per Harris, J., conceding the matter to be irrelevant, it does not necessarily follow that the motion to strike it out should be granted. This section does not authorize the striking out every redundant expression or clause to be found in a pleading. On the contrary, effect must be given to the word "aggrieved,” as used in that section. The matter must not only be "irrelevant or redundant," but some person must be prejudiced thereby. Such a person only is authorized to make the motion. Ib. I am inclined to think it proper for a defendant to state in his answer any facts which it would be material for him to prove on the trial, though such facts may not constitute a complete defence. Any thing which it would be material to prove on the trial ought not, I think, to be deemed irrelevant, when stated in the answer. The plaintiff ought not to complain that the defendant has apprised him of facts upon which he intends to rely in mitigation of damages, if not in defence upon the trial. Ib. A motion to strike out irrelevant or redundant matter answers in place of an exception for impertinence under the former equity practice. The objection for insufficiency, will generally be taken by demurrer. For redundancy, a demurrer will not in general, afford an appropriate remedy, and resort must be had to a motion. Esmond v. Van Benschoten, 5 Pr. R., 44. On a motion to strike out from a complaint portions of two affidavits, made by persons neither parties to the suit, nor related to the defendants, and also the following words, "The plaintiff expressly charges and alleges that the said defendants have been guilty of the crime of forgery, in crossing and obliterating the aforesaid endorsement, and that the same was done to cheat and defraud the plaintiff'; and that the defendants have been guilty of other dishonest and fraudulent acts." The court granted the motion, and per Hand, J.: "If this section (160) does not include scandalous and impertinent matter, it contains no prohibition, and they may still be struck out of a pleading. The old practice in this respect yet exists. It would be monstrous if there were no mode of purifying the record by expunging scandalous matter. It cannot be done by demurrer. (1 Dan. Ch. Pr., 401; Code, s. 144.) By "irrelevant or redundant," in the code, I take it is meant, what is usually understood as impertinent; for a pleading in equity is impertinent, when it is stuffed with long recitals, or long digressions, which are altogether unnecessary and totally immaterial to the matter in hand. 1 Barb. Ch. Pr., 41. Woods v. Morrell, 1 John. Ch. R., 106. It is surplusage at law. According to Webster, redundant means superfluous, more than is necessary, superabundant and irrelevant, not applicable or pertinent, not serving to support. Both, therefore, may probably come under the head of impertinent. Prolixity may become redundance, and Lord Eldon held, that needless prolixity was in itself impertinence; and see, 4 Edw. Ch. R., 426.

It has been thought irrelevant and redundant matter should not be struck out unless a party is aggrieved or prejudiced thereby. (White v. Kidd, 4 Pr. R., 68. Hynds v. Griswold, id. 69.) With deference, I doubt that this is so, to the fullest extent. As to scandalous matter, it is not clear that a person not a party to the record may not move to strike it out. (Coffin v. Cooper, 6 Ves., 514. Williams v. Douglass, 5 Beav., 82. Ex parte Simpson, 15 Ves., 477. 5 Id., 656 Note.) And the court, it seems, will do it without application of any one. And impertinence in an answer was always exceptionable. My own impressions are, that as to scandalous and impertinent, irrelevant and redundant matter, the code has not in any respect changed the former practice in equity cases. (See Shaw v. Jayne, 4 Pr. R., 119. Knowles v. Gee, Id., 317.) Its effect on 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 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. If relevant, it cannot be scandalous. St. John v. St. John, 11 Ves., 526. A few unnecessary words will not make a pleading impertinent. Del Pont v. De Tastel, 1 Tur. and Russ., 486. Des Places v. Goris, 1 Edw. C. R., 350. And courts should be liberal, especially 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. Hawley v. Wolverton, 5 Paige, 522. Perry v. Perry, 1 Barb. Code. Rep., 519.

And in Delpont v. Tastel, supra, which, however, goes to the extent of the rule, extracts from letters of the defendant were permitted for the purpose of eliciting answers as to those letters.

But the principal case is very different. Here, portions of two affidavits, probably extra judicial, by persons not parties to the suit, are inserted, neither of which amount to more than the mere statements of third persons, and are in no sense papers or transactions between the parties, and cannot be given in evidence, nor their existence or validity be put in issue between them. Chancellor Kent thought the best test by which to ascertain whether the matter be impertinent, is to try whether the subject of the allegation could be put in issue, and would be matter proper to be given in evidence between the parties. Woods v. Morrell, supra. The plaintiff might as well have inserted a letter from his own attorney, giving his recollection of the history of the case.

The allegation that one or both of the defendants were guilty of forgery, and also the allegations of fraudulent and dishonest acts in obtaining the judgment, without specifying what those acts were, are still more exceptionable. The complaint alleges that when the plaintiff, Carpenter, transferred the note against Huling to West, there was upon it an endorsement in pencil of $20; that he is informed and believes West obtained judgment against Huling for the whole amount, without deducting the $20, and is also informed and believes, that there was no trace of this endorsement on it at that time, and that Huling has paid the judgment; and that it was understood that when Huling paid what was due, deducting the indorsement, that, completed the payment of Carpenter's debt to West. If Carpenter sold the note for a certain sum, as he alleges, and West afterwards recovered the whole amount, that seems to be a matter between him and Huling, the payer. No liability of Carpenter, therefore, is suggested. This, then, is irrelevant. But the plaintiff, Carpenter, goes further, and expressly alleges and charges, that West and Van Benthuysen, "some or both of them have been guilty of the crime of forgery, in crossing or obliterating the endorsement, and that it was done to cheat and defraud the plaintiffs." As to Van Benthuysen, this seems to be the only connection he has had with the note; for it does not appear that he ever heard of it before. As to West, the charge, if true is wholly irrelevant, and not issuable in this cause, and bears cruelly upon bis moral character, and is, therefore, scandalous; more so, I think, than in the case of Ex parte Simpson, supra, and Somers v. Torrey, 5 Paige, 54, where the matter was expunged with evident marks of reprobation. The general charge of their dishonest and fraudulent acts in obtaining the judgment, is also not issuable and is scandalous. Carpenter v. West, 5 Pr. R, 53.

In Burgett v. Bissell, 3 Code Rep., 215; 5 Pr. R., 192, a motion was made to strike out a large portion of the defendant's answer as irrelevant and redundant. The complaint was for taking and carrying away four hundred sticks of pine timber. The answer denied the taking the timber, and alleged the title to the timber to be in the defendant, and then entered into a statement showing how he acquired such title. Wells, J., however, refused to strike it out, on the ground that it constituted an equitable defence.

It is no sufficient answer to a motion to strike out irrelevant or redundant matter from a complaint, that such matter was inserted solely for the purpose of enabling the plaintiff to obtain an injunction. Putnam v. Putnam, 2 Code Rep., 64.

If it was deemed necessary to bring these facts and circumstances before the court, the proper mode of doing so was to embody them in an affidavit, and not to encumber the pleadings with matter which it is admitted is not necessary there for any purpose of pleading, but merely to aid a collateral proceeding. Ib.