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or collateral, which may possibly bear upon the issue to be tried. The judicious employment of terms, and even the substitution of one word for another, of almost the same general import may often accomplish this, and may perhaps lead to the most important ultimate results.
Another general consideration, or rather general caution, and that a caution not applicable to pleading alone, but to every proceeding in a cause, from its outset to its close, is this, i.e., that wherever the relief claimed, or the statement adapted to the demand of that relief, is grounded upon any special statutory provision, either as contained in the Code itself or in any other measure, the exact words of the provision acted upon should, in every case, be followed, and the statutory provision specially referred to; although possibly, in many, the sentence might seem to have a better turn, if some slight deviation were made in the phraseology. If the actual words of the statute are departed from, the party so framing his pleading or proceeding can never be certain but that the ingenuity of his adversary may detect, and, when detected, may avail himself of some latent irregularity or latent defect in his mode of statement ; but if those words be strictly followed, his proceedings must at least be regular in form, and, if he fail in success, it will not be through any omission of his own in that respect. To the judge, too, before whom the matter is to come, a rigorous compliance with this rule cannot but be highly acceptable, because it relieves him from the necessity of an extra consideration of the subject, and also from the liability of having his time wasted, and his attention distracted, with minor and technical points, wholly unconnected with the real merit of the controversy.-See the case of Schroppd v. Corning, 2 Comst. 132, divided in accordance with these views.
OF THE FORMAL REQUISITES OF PLEADING.
All pleadings, or copies of pleadings, of whatever nature, are required by Rule 44, of the supreme court, to be fairly and leg. ibly written, and, where exceeding two folios in length, they must have the folios distinctly marked in the margin. A strict
compliance with this rule seems to be very generally dispensed with, but still the rule exists, and, as it may at any moment, or on any occasion, be enforced, the only perfectly safe course will be a literal compliance with it on all occasions. The name and residence of the attorney, or party prosecuting in person, must also be endorsed on any copies served.-See Rule 5.
The first requisite essential in every pleading, is that of subscription by the party or by his attorney-sec. 156. This is necessary in all cases, and can never be dispensed with. practice the attorney almost universally subscribes, even when the pleading is verified by the party. In Hubbel v. Livingston, 1 C. R. 63, the signature to the affidavit of verification was held to be a sufficient subscription to the pleading, though of course this case is one of those which are calculated to serve as a caution, and not as a precedent.
The next essential form, with regard to pleadings in general, is that of verification, as to which the Code provides as follows:
§ 157. 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 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 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.
This section was extensively amended on the revision of
made by any
1851, especially with reference to the powers given to agents or attorneys, to verify, instead of their principals, in cases where all the facts are within the personal knowledge of the former. The provisions as to the omission of verification in certain cases, in the two last clauses, are new also, having been omitted in the Code of 1849, though that of 1848 contained a clause to that effect. This last amendment is in accordance with the doctrine laid down in the cases of Clapper v. Fitzpatrick, 1 C. R. 69, 3 How, 314 ; Hill v. Muller, 2 Sandf. S.C. R. 684; 8 L. 0. 90; Bailey v. Dean, 5 Barb. S. C. R. 297; and White v. Cummings, 3 Sandf. S. C. R. 716; 1 C. R. (N. S.) 107.
It must be observed, however, with respect to verification, that it lies in the option of the plaintiff, as to whether it shall or shall not be made a requisite throughout the suit. Under the Code of 1848 it was otherwise, every pleading under that measure being obliged to be verified. See Swift v. Hosmer, 1 C. R. 26, 6 L. O. 37. Under the present measure, or that of 1849, if the complaint be without oath, the answer may be put in in the same form. It is only when any one pleading is verified, that the verification of all subsequent ones, except demurrers, becomes incumbent under sec. 156. It is hardly, however, possible to conceive a case in which the adoption of this precaution by the plaintiff, in the first instance, will not be most essential ; and therefore, as a general rule, it should never be omitted. Such omission will completely deprive him of the benefit of binding down the defendant to the assertion of a true, as well as of a sufficient ground of defence, and it will leave the latter at full liberty to make any allegation he may choose, and thus throw upon his adversary the duty of proving facts, which, in a verified pleading, it would be impossible for him to deny. See George v. AscAvoy, 1 C. R. (N. S.) 318 ; 6 How. 200. It was also held in that case, that the verification, in strictness, forms no part of the pleading itself.
Although, however, the plaintiff may omit to verify his complaint, the defendant may force him to do so with regard to his reply, by putting in a verified answer.—Levi v. Jakeways, 4 How. 126, 2 C. R. 69,-reported as Lin v. Jaquays, 2 C. R. 29.
A pleading must not be verified before the attorney of the party. If so, it will be a nullity, and may be set aside on motion, if made in due time.---Gilmore v. Hempstead, 4 How. 153; Anon. 4 How. 290.
Under the Code of 1849, the most literal compliance with the wording of the section correspondent with that now under consideration, was absolutely essential. Thus, a verification to the effect that the party " had read the complaint, and that the same was true according to the best of his knowledge and belief," was held to be bad, in Van Horne v. Montgomery, 5 How. 238; and in Davis v. Potter, 4 How. 155, it was even considered that the use of the word "and," instead of “or," between the words * information" and belief,” constituted a defect. Although, perhaps, the words “ to the effect,” in the present amendment, may give a little wider latitude in cases of evident mistake, a strict and literal compliance with the wording of the section as it now stands, is, in reality, equally essential to be attended to under the present measure. strict view as to the necessity of following the exact words of the Code, in a substantive allegation to the same effect as the ordinary verification, was taken in the recent case of Mott v. Burnett, 1 C. R. (N. S.) 225.
It would seem from the case of Finnerty v. Barker, 7 L. O. 316, that a pleading may be verified on belief, or information and belief only, in a case where none of the facts pleaded are within the personal knowledge of the party himself: as slander for instance, the matter there in question.
The court, in Bragg v. Bickford, 4 How. 21, allowed a pleading to be verified after it had actually been served, upon good cause shown; though, of course, this case, like all of the same nature, must not be drawn into a precedent for neglect in the first instance. See, however, George v. McAvoy, 6 How. 200; 1 C. R. (N. S.) 318, above cited.
The omission of the party's signature to the affidavit of verification will render the pleading altogether defective--Laimbeer v. Allen, 2 Sandf. S. C. R. 648; 2 C. R. 15.
A greater latitude is, as before observed, given by the recent amendments, in relation to the verification of pleadings by the agent or attorney. It is, however, absolutely essential that the reasons why the affidavit is not made by the party should be set out, on verification by the attorney or agent; if omitted, that verification will be a nullity-Fitch v. Bigelow, 5 How. 237; 3 C. R. 216. See also Webb v. Clark, 2 Sandf. S. C. R. 647 ; 2 C. R. 16.
In Dixwell v. Wordsworth, 2 C. R. 1, a verification by an
attorney, to the effect that the party was absent from the county, and that " from the information furnished this deponent by said defendant, and from his representations (which are the grounds of this deponent's knowledge and belief in the matter.) he believes the foregoing answer to be true," was sustained by the court.
In Hill v. Thacter, 3 How. 407, 2 C. R. 3, it seems to have been considered that the guardian of an infant might properly verify the complaint in an action brought in his name.
A joint answer put in by defendants, severally as well as jointly liable, must be verified by all of them, or it will be held no answer, as regards those defendants who omit to do so. - Alfred v. Watkins, 1 C. R. (N. S.) 343.
In the Appendix various forms of verification will be found, adapted to the different states of circumstances likely to arise under the present provisions.
On service of the copy of a pleading, a correct copy of the affidavit of verification must be added. Any omission in this respect, and particularly the omission of the name of the officer before whom such pleading is sworn, will entitle the opposite party to treat the service as a nullity-Graham v. McCoun, 5 How. 353; 1 C. R. (N. S.) 43. See also George v. McAvoy, 6 How. 200; 1 C. R. (N. S.) 318, above cited.
A pleading, defective in form in any of the foregoing, or other respects, should be immediately returned by the opposite party. If he retain it he will be held to have waived the irregularity, and cannot afterwards take advantage of it; Laimbeer v. Allen, 2 Sandf. S. C. R. 648; 2 C. R. 15; Knickerbacker v. Louncks, 3 How, 64; Levi v. Jakeways, 4 How. 126; 2 C. R. 69; McGoun v. Leavenworth, 3 C. R. 151, (in which a return within the same day was held to be a reasonable time); White v. Cummings, 3 Sandf. S. C. R. 716; 1 C. R. (N. S.) 107; and it would seem that, on returning it, the party taking that measure is bound to point out the nature of the alleged defect.
Although a pleading not duly verified is, in effect, a nullity, see Swift v. Hosmer, 6 L. 0. 317, 1 C. R. 26, it cannot be disregarded altogether as such by the opposite party. The proper course is to move to set it aside for irregularity, and such motion must be made on the very first opportunity after the service, or the irregularity will be held to have been waived ; Gilmore v. Hempstead, 4 How. 153; Laimbeer v. Allen, and Graham v.