Obrázky stránek
PDF
ePub
[ocr errors]

forth as

many

See Section 140, supra, and notes.

Requisites of answer. Boyce v. Brown, 7 Barb. 80; Royce v. Brown, 3 How. 391; Kellogg agt. Church, 4 How. 339; Spelman and others agt. Weider and others, 5 How. 5; Knowles agt. Gee and others, 4 How. 317; McMurray and Thomas agt. Gifford, 5 How. 14; The Genesee Mutual Ins. Co. agt. Moynheim, id. 321 ; Russell vs. Clapp, 7 Barb. 482; S. C., 4 How. 347; Castles vs. Woodhouse, 1 Code Rep. 72.

As to supplementary answer see Radley vs. Houghtailing, 4 How. 251.

A plaintiff has no right to adjudge answer frivolous and treat it as a nul*

lity. Hartness and others vs. Bennett, 3 How. 289. May set $ 150. [Sec. 129.] The defendant may set forth by an

swer, as many defences as he shall have. They shall each grounds of defence as be separately stated, and refer to the causes of action which

they are intended to answer, in any manner by which Amended

they may be intelligibly distinguished.
See sections 140 and 149, and notes.

§ 151. The defendant may demur to one or more of sevaction, and

eral causes of action stated in the complaint, and answer the residue.

§ 152. Sham and irrelevant answers and defences may be stricken out on motion and upon such terms as the court may

in their discretion impose. Passed

When answers and defences may be stricken out, see Smith et al. vs. Amended Greenin and Vine, 2 Sand. 702; Darrow agt. Miller, 5 How. 247; Mier agt.

Cartlege and Ferguson, 4 How. 115; McGowan agt. Norrow, 3 Code Rep. 9.

If answer deny a material allegation it will not be stricken out. Davis agt. Potter, 4 How. 155; Hill agt. McCarthy, 3 Code Rep. 49.

1849

Demurrer as to some causes of

answer as to others,

Passed 1849. Sham defence to be stricken out.

1849.

[ocr errors]

1851.

when to be

CHAPTER IV.

The Reply.
SECTION 153. Reply, when to be put in, and what to contain.

154. When defendant may move for judgment upon an answer.

155. Demurrer to reply. Reply, § 153. [Sec. 131.] When the answer contains new matter pohading and constituting defence or set-off the plaintiff may, within twenty

days, reply to such new matter, denying specifically each al

legation controverted by him, according to his knowledge, in-. 1849, 1851.

formation or belief, or any knowledge or information thereof sufficient to form a belief ; and he may allege, in a plain and

what to contain.

Amended

concise manner without unnecessary repetition, any new matter, not inconsistent with the complaint, constituting a defence to such new matter in the answer ;, or he may demur to the same for insufficiency, stating in his demurrer the grounds thereof; and the plaintiff may demur to one or more of several defences and set-off set up in the answer and reply to the residue.

When the answer contains new matter requiring a reply. Walrod vs. Bennet, 6 Barb. 144; Beals vs. Cameron, 3 How. 414.

When a reply is not necessary. Brown and others, agt. Spear and Butler, 5 How. 146; Howard agt. The Michigan Southern R. R. Co. id. 200.

The plaintiff may be allowed to reply on terms. Merritt and another agt. Slocum and others, 3 How. 309. $ 154. If the answer contain a statement of new matter when de

fendant constituting a defence, and the plaintiff fail to reply or may nove demur thereto within the time prescribed by law, the de- ment, upon fendant may move on a notice of not less than ten days

Passed for such judgment, as he is entitled to upon such state- 1849. ment, and if the case require it, a writ of inquiry of damages may be issued. See Section 247, infra, and notes. $ 155. If a reply of the plaintiff to any defence set up Demurrer

to reply by the answer of the defendant be insufficient, the defendant may demur thereto, and shall state the grounds there-1949. of.

answer

Passed

a

Verifica tion of

Manner of verification

Amended

CHAPTER V.

General Rules of Pleading.
Section 156. No pleading but complaint, answer, reply and demurrers.

157. Verification of pleadings.
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.

168. Allegation not denied ; when to be deemed true,

§ 156. [Sec. 133.] Every pleading in a court of record must pleadings. be subscribed by the party, or his attorney, and when any pleadAmended 1949, 1851. ing is verified, every subsequent pleading, except a demurrer,

must be verified also.

$ 157. [Sec. 133.The verification must be to the effect, that

the same is true to the knowledge of the person making it except 1849, 1851. 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 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 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

a

[ocr errors]

237;

[ocr errors]

How to

acquainted with the facts. The verification may be omitted
when an admission of the truth of the allegation might sub-
ject 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.
As to the manner of verification, see Fitch agt. Bigelow, et al., 5 How..

Van Horne, president &c. agt. Montgomery, id. 238; Gamble vs. Beatty, 4 How. 41; Dixwell vs. Wordsworth, 2 Code Rep. 1; Laimbeer vs. Allen and Whittlesey, 2 Sand. 648.

When pleading need not be verified. Hill vs. Muller, 2 Sand. 684; Clapper vs. Fitspatrick and others, 3 How. 314.

A copy of the verification must be served with the pleading. Graham agt. Mc Gown and others, 5 How. 353.

Where the affidavit is defective, the remedy is by motion to set it aside. Webb v. Clark 2 Sand. 647; Gilmore v. Hempstead et al., 4 How. 153; Anon. 4 How. 290.

The affidavit cannot be sworn to before the attorney of the party. Gil. more agt. Hempstead, 4 How. 153; Willard vs. Judd, 15 Johns. 531; Anon. 4 How. 290.

state an ac! $ 158. [Sec. 135.] It shall not be necessary for a party to count, in

pleading. set forth in a pleading, the items of an account therein alleged; but he shall deliver to the adverse party, within ten days after 1849, 1861. 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.

Since the code of procedure, there is no provision nor practice requiring bills of particulars to be given, and where the marine court rendered judg. ment for not furnishing such a bill, the judgment was reversed. Winslow and Morris vs. Kierski, 2 Sand. 304. § 159. [Sec. 136.] In the construction of a pleading, for Pleadings

to be liberthe purpose of determining its effect, its allegations shall be ally conliberally construed, with a view to substantial justice be tween the parties. [NOTES.]

5

Amended

Irrelevant or redundant matters

a

en out.

$ 160. [Sec. 137.) If irrelevant or redundant matter be tobe strick inserted in a pleading, it may be stricken out, on motion of

any person aggrieved thereby. And when the allegations Amended 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.

What may be stricken out. Shaw agt. Jayne and Brown, 4 How. -119. White, receiver, &c., agt. Kidd, id. 68; Hynds agt. Griswold, id. 69; Be. dell vs. Stickles, id. 432; Spelman and others agt. Weider and others, 5 How. 5; Carpenter and Wilcox agt. West and Van Benthuysen, id. 53, Anon. 2, Sand. 682.

What will not be stricken out. Burgett vs. Bissell, 5 How. 192; Neefus v. Kloppenburgh, 2 Code Rep. 76.

Must be struck out before answering, replying, or noticing for trial. Corties v. Delaplaine, 2 Sand. 680; Ermond agt. Van Benschoten, 5 How. 44. Supreme Court Rule, 43.

An order refusing to strike out frivolous pleading is not an appealable

order. Bedell vs. Stickles, 4 How. 432. Judgments

§ 161. [Sec. 138.] In pleading a judgment, or other depleaded.

termination of a court, or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on

the trial, the facts conferring jurisdiction. Conditions precedent, § 162. [Sec. 139.] In pleading the performance of condipleaded. tions precedent in a contract, it shall not be necessary to state Amended the facts, showing such performance; but it may be stated gen

erally, that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish on the trial, the facts showing such performance. In an action or defence, founded upon an instrument, for the payment of money only, it shall be sufficient for the party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specified sum which he claims.

how to be

how to be

1851.

« PředchozíPokračovat »