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Verifica tion of

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 1849, 1851. ing is verified, every subsequent pleading, except a demurrer,

must be verified also. Manner of § 157. [Sec. 133. The verification must be to the effect, that verification

the same is true to the knowledge of the person making it except 1849, 1861. 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 affida-, vit. 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

How to

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.

As to the manner of verification, see Fitch agt. Bigelow, et al., 5 How.. 237; 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. Gilmore agt. Hempstead, 4 How. 153; Willard vs. Judd, 15 Johns. 531; Anon. 4 How. 290.

slate an ac! $ 158. [Sec. 135.] It shall not be necessary for a party to count, in. 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, 1851. 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 the 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

strued.

Irrelevant or redundant matters

en out.

§ 160. [Sec. 137.] If irrelevant or redundant matter be lobe swick 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 Ber iysen, 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. Cor. ties 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 specificd sum which he claims.

how to be

how to be

1851.

plaint.

To charge an endorser, it is not necessary to aver a presentment and demand at the place specified in the note. Gay agt. Paine and Paine, 5 How. 107.

§ 163. [Sec. 140.] In pleading a private statute, or a Private right derived therefrom, it shall be sufficient to refer to how to be

. such statute, by its title and the day of its passage, and the court shall thereupon take judicial notice thereof.

§ 164. [Sec. 141.] In an action for libel or slander, it Libel and shall not be necessary to state in the complaint, any extrin-how stated sic facts, for the purpose of showing the application to the plaintiff, of the defamatory matter out of which the cause of action arose; but it shall be sufficient to state generally, , that the same was published or spoken concerning the plaintiff, and if such allegation be controverted, the plaintiff shall be bound to establish, on trial, that it was so published or spoken.

As to manner of pleading in actions for slander, see Pike agt. Van Wor. mer, 5 How. 171; Anon. 3, How. 406; Duel vs. Agan, 1 Code Rep. 134; Wood v. Gilchrist, id. 117.

$ 165. [Sec. 142.] In the actions mentioned in the last Answer in section, the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitiga- 1849, ting circumstances, to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances.

9 166. In an action to recover the possession of property In actions distrained doing damage, an answer that the defendant or property person by whose command he acted, was lawfully possessed of the real property upon which the distress was forth the made, and that the property distrained was at the time doing damage thereon, shall be good, without setting forth 1949 the title to such real property.

$ 167. [Sec. 143.] The plaintiff may unite several causes What of action in the same complaint where they all arise out of action may

1. Contract, express or implied ; or
2. Injuries with or without force, to the person; or

such cases.

Amended

for damage answer need not set

litle.

causes of

be joined in the same action.

Amended 1849.

3. Injuries with or without force, to property; or
4. Injuries to character; or

5. Claims to recover real property, with or without damages, for withholding thereof, and the rents and profits of the same; or

6. Claims to recover personal property, with or without damages for the withholding thereof; or

7. Claims against a trustee, by virtue of a contract, or by operation of law.

But the causes of action, so united, must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated.

Where there are separate causes of action, all arising out of the same class, they must be separately stated, that is, a count for each cause of action; 2 Code Rep., 145.

A claim for money had and received cannot be joined with a claim founded on a refusal to deliver up promissory notes. Cahoon and others agt. The President, &c., of the Bank of Utica, 4 How. 423.

Claims for injuries to personal property, and claims for its possession, are different causes of action. Spaulding vs. Spaulding, 3 How. 297.

Where the claim is for return of the goods or their value, the judg. ment cannot be entered in the alternative. Aldrich v. Thiel, 3 Code

Rep. 91. Allegation § 168. [Sec. 114.] Every material allegation of the comnot denied,

plaint, not specifically controverted by the answer, as prescribed in section 149; and every material allegation of new matter in the answer, not specifically controverted by the reply, as prescribed in section 153, shall, for the purposes of the action, be taken as true. But the allegation of new matter in a reply, shall not in any respect conclude the defendant, who may on the trial countervail it by proofs, either in direct denial or by way of avoidance.

[See sections 149 and 153, and notes.] By a material allegation is intended an allegation of fact. Barton vs. Sackett and others; 3 How. 358.

This section applicable to Justices' courts. Young vs. Moore, 2 Code Rep. 143.

when to be deemned true.

Amended 1849.

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