afterwards moved for judgment for default of an answer, the motion was denied (White v. Cummings, 3 Sand. 716).

a. 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 return it. He has a right to assume that the original is not sworn (Graham v. McCoun, 5 How. 353). The copy should include verification, and the name of the officer before whom sworn; and if it omit to state the name of the officer before whom sworn, it may be treated as an unverified pleading (Graham v. Mc Coun, 5 How. 353; Hughes v. Wood, 5 Duer, 603, note; Trowbridge v. Didier, 4 id. 450). The practice of moving to set aside a pleading for want of a sufficient verification is not to be commended (Wilkin v. Gilman, 13 How. 225).

b. The term "subsequent pleading," means subsequent in order of pleading, not subsequent in order of time [when pled]; therefore, an amended complaint, served after an answer has been put in, is not a subsequent pleading to the answer. If the complaint is not verified, and after answer the plaintiff serves an amended complaint, that does not render it incumbent on the defendant to verify his answer (Hempstead v. Hempstead, 7 How. 8; White v. Bennett, ib. 59). If the complaint be not verified, yet defendant may verify his answer; and if he do so, the reply, if any, must be verified (Lin v. Jacquays, 2 Code Rep. 29; Levi v. Jacquays, 4 How. 126).

§ 157. (Am'd 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 defense be founded upon a written instrument for the payment of money only, and such instrument be in the 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 veried 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 allegation might subject 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.

a. Omitting verification.—The verification may be omitted in all cases where the party called upon to verify would be privileged from testifying as a witness to the truth of any matter denied by such pleading (Laws 1854, p. 153). The privilege of a party from testifying as a witness extends to the following cases: Where the answer will have a tendency to expose the witness to a penal liability, or to any kind of punishment, or to a criminal charge (Clapper v. Fitzpatrick, 3 How. 314). If the fact to which he is interrogated forms but one link in the chain of testimony which is to convict him, he is privileged; and the witness need not explain how he might be criminated by the answer. If the prosecution to which he might be exposed is barred by lapse of time, the privilege ceases and the witness must answer (Henry v. Salina Bank, 1 N. Y. 86). So, if the prosecution be under a foreign law (King of the Two Sicilies v. Wilcox, 15 Jurist, 214). Or if the witness has been protected by statute against the use of his testimony on a trial against himself (The People v. Kelly, 24 How. 369; Re Hackley, 24 N. Y. 74: Byass V. Smith, 4 Bosw. 679). A defendant is not excused from verifying his answer by the complaint charging him with fraud in making the assignment; it is the object of the action to have set aside (Wolcott v. Winston, 8 Abb. 422; and see The People v. Gay, 7 N. Y. 382).

b. Whether or not in an action for divorce, charging adultery, the complaint being verified, the answer must be verified is doubtful; that it need not (Sweet v. Sweet, 15 How. 169; Anable v. Anable, 24 How. 92); that it must be (Olney v. Olney, 7 Abb. 350; see 2 R. S. 144, § 39). In an action for libel, if the answer denies the publication, no verification is required (Blaisdell v. Raymond, 5 Abb. 144; 6 Abb. 148; and see Re Tappan, 9 How. 394; Moloney v. Dows, 2 Hilton, 247; The People v. Kelly, 24 How. 369; and see Lynch v. Todd, 13 How. 546; Wheeler v. Dixon, 14 How. 151; Springsteed v. Robinson, 8 How. 41).

c. When agent or attorney may verify.—The attorney may verify the complaint in two cases: (1) when the action is founded on a written instrument in his possession; and (2) when all the material allegations of the pleading are within his personal knowledge (Mason v. Brown, 6 How. 484;. Treadwell v. Fassett, 10 id. 184; Wheeler v. Chesley, 14 Abb. 441); (3) when the party is absent from the county where the attorney resides (Roscoe v. Maison, 7 How. 121; Latson v. Lefever, 5 Sand. 650; Stannard v. Mattice, 7 How. 4). The guardian, or the attorney for the guardian, of an infant plaintiff should verify the complaint (Hill v. Thacter, 3 How. 409; Anable v. Anable, 24 How. 92; Rogers v. Cruger, 7 Johns. 581). Where a party has several agents, the verification need not be made by the agent who knows most about the matter (Drevert v. Appsert, 2 Abb. 165). The attorney in the action may verify on behalf of his nonresident client, although it appear that the client has a resident agent (id.)

d. Verification by party in interest.—Where the action is prosecuted or defended for the immediate benefit of one not a party to the record, but who is the party in interest, the pleading may be verified by him (Taber v. Gardner, 6 Abb. N. S. 147).

e. Verification as evidence.—Where the verification is by a party to the suit, all statements contained in it are evidence on the trial against the deponent (Morrell v. Cawley, 17 Abb. 76); but where the verification is by one not a party to the suit, his statements therein are not evidence against a party to the suit (Bowen v. Powell, 1 Lans. 1).

f. Form of verification.—The form prescribed need not be literally followed (Radway v. Mather, 5 Sand. 655; Harris v. Trip, 4 Abb. 232); a substantial compliance is sufficient (Waggoner v. Brown, 1 How. 212); the substitution of "facts" for "matters" would not render verification defective (Whelpley v. Van Epps, 9 Paige, 333). The verification need not state that the deponent has read the pleading (Patterson v Ely, 19 Cal. R. 28). It should be subscribed by the deponent (Laimbeer v. Allen, 2 Sand. 648); and semble not sworn before the attorney in the action (Gilmor v. Hempstead, 4 How.

153; Anon. id. 290; Post v. Coleman, 9 id. 64). Where the verification was without a venue, 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 nullity (Lane v. Morse, 6 How. 394).

a. Out of State.-Form of verification out of the State (see 2 R. S. 396, § 25; 12 Wend. 225; 3 Hill, 463; Lahens v. Fielden, 1 Barb. 22; Laws 1863, p. 449; City B’k v. Lumley, 28 How. 401).

¿. Corporation.-When the verification is by an officer of a corporation, it is in fact the verification of the corporation, and the form of verification is that of a party to the action (Glaubensklec v. Hamburg Packet Co. 9 Abb. 104).

c. Attorney or agent.-Where the verification is by the attorney, he must set forth, in the affidavit of verification, his knowledge, or the grounds of his belief on the subject, and the reason why it was not made by the party (Stannard v. Mattice, 7 How. 4; Fitch v. Bigelow, 5 id. 237; Treadwell v. Fassett, 10 How. 184; Hubbard v. Nat. Pro. Ins. Co. 11 id. 149; Bank of Maine v. Buel, 14 id. 311; Boston Locomotive Works v. Wright, 15 id. 253; Soutler v. Mather, 14 Abb. 440; contra, Smith v. Rosenthal, 11 How. 442; Myers v. Gerrits, 13 Abb. 106). Semble it is not necessary to state the absence of the party where the agent or attorney has a knowledge of the facts (Gurney v. Wersuland, 3 Duer, 613; Ross v. Longmuir, 15 Abb. 326). Verifications by attorneys held sufficient (see Dixwell v. Wordsworth, 2 Code Rep. 1; Wheeler v. Chesley, 14 Abb. 441; Mason v. Brown, 6 How. 481; Stannard v. Mattice, 7 How. 4; Smith v. Rosenthal, 11 How. 442; Myers v. Gerrits, 13 Abb. 106; Wilkin v. Gilman, 13 How. 225; Wheeler v. Chesley, 14 Abb. 442). Verifications by attorneys held insufficient (see Fitch v. Bigelow, 5 How. 237; Treadwell v. Fassett, 10 How. 184; Hubbard v. Nat Pro. Ins. Co. 11 How. 149; Mead v. Gleason, 13 How. 313; Tibballs v. Selfridge, 12 How. 64; Soutler v. Mather, 14 Abb. 440; B'k of Maine v. Bull, 14 How. 311; The People v. Allen, id. 334; Boston Loco. Works v. Wright, 15 How. 253). The forms following have been held defective: "That he has read the foregoing complaint, and knows the contents thereof, and that the same is true" (Williams v. Riel, 11 How. 375; 5 Duer, 601; but see Southworth v. Curtis, 6 How. 271). "A. B., the above-named plaintiff, being duly sworn, says the above complaint is substantially true of his own knowledge" (Waggoner v. Brown, 8 How. 212); that the party had read the pleading, and "the same is true, according to the best of his knowledge and belief" (Van Horn v. Montgomery, 5 id. 238).

d. Where all the allegations in a pleading were made on information and belief, a verification in which it was stated that the affiant "believes it to be true, all the allegations therein being made on information and belief," was held to be sufficient (Harnes v. Tripp, 4 Abb. 232).

e Where in a pleading all, the allegations are positive, and are none of them stated to be on information and belief, the verification that it is true to his knowledge, without adding the words, "except as to the matters therein stated upon information and belief. and as to those matters he believes it to be true," is a sufficient verification (Kinkaid v. Kip, 1 Duer, 692; and see Ross v. Longmuir, 24 How. 49; and S. C. on appeal, 15 Abb. 326). The form of verification by a party does not imply that appears it on the face of the pleading what matters are stated on personal knowledge and what on information and belief (Truscott v. Dole, 7 How. 221).

ƒ. When two defendants put in a joint answer, one defendant cannot swear to the want of information sufficient to form a belief on the part of his codefendant (Kinkaid v. Kip, 1 Duer, 692). But where in an action against two defendants they answered, "As to each and every allegation of the complaint they say they have no knowledge or information thereof sufficient to form a belief," the verification was in the following form: The defendants, "being severally sworn, says, each for himself, that the foregoing answer is true to his own knowledge, except so far as the same alleges want of sufficient information to form a belief on the part of the other defendant, that as to such allega

tion he believes the same to be true." On motion to strike out the answer on the ground of a defect in the verification, Emmett, J., denied the motion; and see Patterson v. Ely, 19 Cal. R. 28.

a. Verification by all plaintiffs or defendants.-Where several join as plaintiffs, or defendants, all not united in interest should verify (Gray v. Kendall, 5 Bosw. 666; 10 Abb. 70). Where one of several parties united in interest makes the verification, he should state that he is acquainted with the facts (Kelly v. Bowman, Transcript, 18 July, 1861; Boston Loco. Works v. Wright, 15 How. 253). Where the maker and indorser of a promissory note are sued together, the complaint being verified, if they put in a joint answer, it must be verified by both (Andrews v. Storms, 5 Sand. 609; Alfred v. Watkins, 1 Code Rep. N. S. 343; Hull v. Ball, 14 How. 305; and see Reed v. Butler, 2 Hilton, 589).

b. And in an action against husband and wife, where the complaint is verified, unless the wife is a mere nominal party, she should join with the husband in verifying the answer (Youngs v. Seely, 12 How. 397; Reed v. Butler, 2 Hilton, 589; but see Hartely v. James, 18 Abb. 299).

c. Writing, numbering, and indorsing pleadings.—Pleadings are to be in the English language (2 R. S. 275, § 9), legibly written, and the folios, where the pleading exceeds two folios in length, distinctly marked (Rules 20 and 56); the attorney's name and residence are to be indorsed (id. 10).

§ 158. (Am'd 1849, 1851.) Items of account. Particulars.

[1] 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; [2] and the court may in all cases order a bill of particulars of the claim of either party to be furnished.

d. Copy account.-The "account" alleged in the pleading means an "account stated " (Johnson v. Mallory, 2 Rob. 681). Where an account is alleged in a pleading, the opposite party is entitled to a copy thereof; in all other cases, particulars can be obtained only by order (Fullerton v. Gaylord, 7 Rob. 566). An order to deliver a copy of the account mentioned in a complaint does not per se extend the time to answer (Platt v. Townsend, 3 Abb. 9; 5 Duer, 668). After demand of a copy account, if one is delivered which is not satisfactory, a motion should be made promptly for a further account (McKinney v. McKinney, 12 How. 22). The items, as to which a further account is required, should be clearly specified (Kellogg v. Paine, 8 How. 329). The order for a further account may be made at any time before trial (Yates v. Bigelow, 9 How. 186), but after order for reference and trial before referee commenced (Cadwell v. Goodenough, 28 How. 479; 2 Rob. 706; 3 id. 633). A party refusing to furnish a copy of his account should be precluded from giving evidence thereof (Goings v. Patten, 17 Abb. 339). An order for precluding such evidence should be obtained prior to the trial (Kellogg v. Paine, 8 How. 329). An order directing the defendant to deliver an account of payments, or show cause why he should not deliver such account, is not appealable (Watt v. Watt, 2 Rob. 685; 3 id. 615).

a. Bill of particulars.-A party is not entitled, of course, to a bill of particulars. It can be obtained only by order (Fullerton v. Gaylord, 7 Rob. 566). A bill of particulars was refused in an action for violating a special contract (Ives v. Shaw, 31 How. 54), for breach of warranty (Pylie v. Stephen, 6 M. & W. 814), for settlement of partnership accounts (Depew v. Leal, 5 Duer, 663), for converting goods (Blackie v. Neilson, 6 Bosw. 681), for death by wrongful act (Murphy v. Kip, 1 Duer, 659); nor will the order be made in any case where the party applying has full knowledge of the grounds of action or defense (Young v. De Mott, 1 Barb. 30; Blackie v. Neilson, 6 Bosw. 681). A plaintiff is not bound to furnish particulars of set-offs, or payments by defendant, with which he (plaintiff) volunteers to credit him (defendant) in his complaint (Williams v. Shaw, 4 Abb. 209; Giles v. Betz, 15 Abb. 285; Watt v. Watt, 2 Rob. 685). In an action on a policy of insurance, the defendant is entitled to a bill of particulars (Cockroft v. Atlantic Mut. Ins. Co. 9 Bosw. 681; see Mason v. Ring, 10 Bosw. 598; Goings v. Ludlow, 9 id. 681). The use of a bill of particulars is to apprise a party of the specific demands of his adversary (The People v. Monroe Com. Pleas, 4 Wend. 200). It "has the effect to restrict the proofs and limit the recovery to the matters set forth in it. It is regarded as an amplification of the pleading to which it relates, and it is to be construed as forming a part of it" (Melvin v. Wood, 3 Keyes, 536; Bowman v. Earle, 3 Duer, 649). No proofs should be allowed of matters not within the bill of particulars (id.; Brown v. Williams, 4 Wend. 368). But it is not the office of a bill of particulars to state the grounds upon which the plaintiff claims to recover, but only to point out the items and particulars of his claim (Seaman v. Low, 4 Bosw. 338). It is sufficiently specific if it apprises the opposite party of the evidence to be offered (Smith v. Hicks, 5 Wend. 48; Drake v. Thayer, 5 Rob. 694). A bill of particulars as follows: to the first count damages $5,000; balance due on settlement, $5,000; money received at New Orleans on account of plaintiff, $5,000, without specifying any date,-held insufficient (Wetmore v. Jennys, 1 Barb. 53); and stating the items as 64 amount advanced" is not sufficient (Moran v. Morissey, 18 Abb. 131; 28 How. 100). The several items should be stated with dates and amounts (Kellogg v. Paine, 8 How. 329).

§ 159. Pleadings, how construed.

In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view of substantial justice between the parties.

b. The code, by requiring pleadings to be liberally construed, does not mean that substantial averments may be omitted (Koenig v. Nott, 2 Hilton, 324; Spear v. Downing, 34 Barb. 523; 12 Abb. 437). A verified pleading must be construed so as to make all its parts, if possible, harmonize with each other (Ryle v. Harrington, 4 Abb. 421).

e. Words used in a pleading, as in a contract, should be construed according to their popular sense (Woodbury v. Sackrider, 2 Abb. 405; Mann v. Morewood, 5 Sand. 557) ; but a pleading must be construed according to what it says, and not what the pleader intended (6 Hill, 240; Gould v. Glass, 19 Barb. 185). "The law does not presume that a party's pleadings are less strong than the facts of the case will warrant " (Cruger v. The Hudson River R. R. Co. 12 N. Y. 201; Koenig v. Nott, 2 Hilton, 324); and where the plaintiff so frames his complaint as to render it doubtful whether he intends to rely on a cause of action on tort or contract, that construction should prevail which is most unfavorable to the plaintiff (Ridder v. Whitlock, 12 How. 212; see Munger v. Hess, 30 N. Y. 591); when the statement of facts in a complaint will support either of two actions, and it is doubtful which the pleader intended, the demand for judgment and the summons may be con