A similar question has been raised, as to whether, in cases where the defendant is arrestable, allegations of fraud, on which to ground an execution against the person, ought or ought not to be inserted in the complaint; and much discussion has arisen on the subject. The cases in favor of, and against the admissibility of such allegations, are very nicely balanced. The prevailing opinion would seem to be, that such allegations are admissible, if going to the cause of action itself, and stated in a direct and not a probative form, so as to present a distinct issue, without wandering into collateral circumstances. See this point fully considered hereafter, under the head of arrest. Arguments, too, standing alone, are inadmissible as matters of pleading; the material and traversable facts must be alleged, and not left to inference.-Lewis v. Kendall, 6 How. 59.

The mere averment of the intentions of parties in executing a written instrument, without any direct allegations of mistake, or surprise, or any facts tending to such a conclusion, was, in accordance with the general principle that facts not conclusions, are to be averred, held to be bad pleading, in Barton v. Sackett, 1 C. R. 96; 3 How. 358. Indefiniteness, in general, is an objection which must, on all occasions, be provided against. An answer, not giving proper particulars of a demand of setoff, but following the words of the old common law counts in assumpsit, was accordingly held to be bad in Wiggins v. Gaus, 3 Sandf. S. C. R. 738; 1 C. R. (N. S.) 117. Thus, also, a bare averment in slander, that "what the defendant said of the plaintiff was true," no facts being stated in support of a justification, was overruled.-Anon. 3, How. 406. So likewise in an action on a promissory note, where the allegations in the complaint were insufficient, a mere denial that, by "reason of" the allegations in the complaint, the plaintiff was entitled to judgment, without specifically taking the objection, or traversing any point in the complaint, was held to be no denial.-Hoxie v. Cushman, 7 L. O. 149.

Hypothetical pleading is also clearly bad. Facts, when pleaded, must be pleaded directly and to the point, and neither hypothetically nor alternatively. This is so clear a point, that it seems almost unnecessary to cite authorities on the subject. McMurray v. Gifford, 5 How. 14; Sayles v. Wooden, 6 How. 84; Porter v. McCreedy, 1 C. R. (N. S.) 88; and Lewis v. Kendall, 6 How. 59; are decisions directly in point. In Royce v. Brown,

3 How. 391, the law is also laid down in similar terms, and an answer held to be bad, as being, amongst many other objections, hypothetical. See, also, Williams v. Hayes, 5 How. 470; 1 C. R. (N. 'S.) 148.

The facts of the case must, in every form of action, be set forth with sufficient certainty, so as to give the court adequate data on which to ground a judgment, or demurrer will lie.— Tallman v. Green, 3 Sandf. S. C. R. 437.

The repetition of the same cause of action, or ground of defence, in other terms, as under the old common law system, is inadmissible under any circumstances. Thus, where, in an action against a common carrier, the complaint contained six different statements of the cause of action, copied from the counts under the old practice, all, except the first, were ordered to be stricken out.-Stockbridge Iron Co. v. Mellen, 5 How. 439.

The above remarks sum up that portion of the general consideration of essentials in pleading, which treats of averments, inadmissible in their nature, and therefore proper to be stricken out on the ground of their irrelevancy or redundancy. The particular considerations on this subject, in relation to each pleading separately viewed, will be treated of hereafter. The remedies of the party aggrieved, in this respect, are either by a motion to strike out the redundant portions under sec. 160; or, as regards defensive pleadings, by an application for judgment, under sec. 152, or sec. 247, if such pleading be wholly irrelevant or frivolous, subjects which will be severally considered hereafter.

The grounds of redundant, or mistaken averments, are, however, not the only ones on which pleadings, generally consid ered, may be impeached; insufficiency is, on the other hand, an objection equally fatal, or even still more so, and one which may, moreover, be taken at any stage of the action. Under this classification may be placed the averment of a bare legal conclusion, unsupported by any statement of facts whatever, as before noticed; but the more common form of defect is the omission to state facts sufficient to constitute a cause of action, or a valid ground of defence.

On this subject it is more difficult to lay down any rules of universal application; every case must, in fact, depend upon its own circumstances, and each step in pleading has its own peculiar rules as to sufficiency or insufficiency. These questions

will therefore be more conveniently considered, as applicable to each distinct stage in the pleadings themselves, and especially under the head of Demurrer, the proper medium, in all cases, for the taking of objections of this nature.

Before quitting, however, the subject of the essential, and entering upon that of the formal requisites of pleadings, generally considered, one or two general remarks, in the nature rather of cautions than of rules of practice, seem expedient.

In any pleading whatsoever, no greater mistake can be committed, than to aver too much : or, in fact, to aver more than is absolutely necessary, for the purpose of establishing, either the cause of action, or ground of defence.

Every known circumstance of the case must, of course, be well and maturely weighed at the outset. No more dangerous error can, in fact, be committed than to defer a complete investigation in this respect, until the cause approaches a hearing. The probable defence, or probable reply, to be put in, must be realized in the mind of the pleader, whilst framing his original statements, as far as practicable, and his case shaped accordingly.

The insertion of conjectural allegations is, however, on the other hand, a most perilous course, and one to be avoided, under almost every possible state of circumstances, both as affording evidence of a sense of weakness, and also as calculated to suggest the taking of objections that might otherwise have escaped notice. The grand object in all pleadings, should be to state exactly enough to maintain the party's own case, and to furnish a ground for the introduction of the evidence by which it is proposed to be established; to state everything necessary for these purposes, and to state not one word, not one syllable more. Every unnecessary allegation, however apparently trivial, gives pro tanto an advantage to the adversary. The object proposed should be to let him see as little as possible of the details of your case, and to gain as great an insight as possible into the details of his, before those details come out on the trial: and whichever of the two parties accomplishes this the most completely, has, cæteris paribus, the greatest advantage. In every case also, whilst alleging the necessary facts, care must be taken to allege them, or rather to allege the conclusion founded upon them, in such general terms as to afford ground for the introduction of every species of evidence whatever, either direct

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, ie., 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 Schroppel v. Corning, 2 Comst. 132, divided in accordance with these views.

CHAPTER II.

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 legibly 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. In 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 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.

This section was extensively; amended on the revision of