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McCoun, above cited; Webb v. Clark, 2 Sandf. S. C. R. 647; 2 C. R. 16. The last case is also authority that an objection of this nature cannot be taken by way of demurrer.
In Fitch v. Bigelow, 5 How. 237, 3 C. R. 216, above cited, the case of a complaint irregularly verified, a motion of this nature was however denied, but without costs; and it was held that the proper course for a defendant to pursue under such circumstances, was to put in his answer without oath, treating the complaint as if not verified at all.
Where an answer is sworn to by a person residing out of the state, or in any foreign country, it must be so sworn before the judge of some court having a seal ; and the genuineness of his signature, the existence of the court, and the fact that the judge who acts, is a member thereof, must be certified by the clerk of such court under that seal. See 2 R. S. 396, sec. 26. It may also be taken by commission, in the same manner as the evidence of witnesses out of the state, wherever that course may be most convenient. See observations in a subsequent
a chapter, as to the taking of evidence, under the same or analogous circumstances.
The following formal provisions are made by the Code, with respect to matters forming the subject of pleading, either offensive or defensive.
The items of an account alleged, need not be set forth in any pleading, but a verified copy must be delivered to the opposite party, if demanded. See sec, 158.
In pleading a judgment, or other determination of a court, or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction, but it may be stated as having been duly made; sec. 161. If controverted, however, by the opposite party, proof of that jurisdiction will then be necessary on the trial. The jurisdiction of the United States courts is intended, without being specially proved.-- Bement v. Wisner, 1 C. R. (N. S.) 143.
The due performance of a condition precedent, may be pleaded generally, without stating the facts which show it, and, in an action or defence founded on an instrument for payment of money only, it is sufficient to give a copy of the instrument, and state the sum due under it, sec. 162. See, however, subsequent observations on this clause under the head of complaint.
A reference to the title, and date of passage of a private statute, is sufficient for the purposes of pleading it; sec. 163.
The question of irrelevant or redundant matter, and also the provisions of the Code, applicable to any one stage of pleading exclusively considered, will be treated of hereafter. The pro. visions of sec. 168, under which, every material allegation, not specifically controverted by the opposite party, is to be taken as true, are of course most essential to be attended to on all occasions. The detailed consideration of this branch of the subject belongs, however, more exclusively to the heads of Answer and Reply.
OF THE CORRECTION OF PLEADINGS BY THE MOVING PARTY.
Although, in a great measure, this branch of the subject is of special application, still many considerations of a general nature arise out of it, and will, therefore, be so considered.
Pleadings may be corrected either
3. By the striking out of improper matter, on the application of the adverse party.
These three subjects will, accordingly, be successively considered; the two first in the present, the last in the succeeding Chapter.
The provision of the Code on the subject of amendments as of course, is as follows:
$ 172. Any pleading may be once amended by the party of course, without costs, and without prejudice to the proceedings already had, at any time before the period for answering it expires, or, it can be so amended at any time within twenty days after the service of the answer or demurrer to such pleading ; unless it be made to appear to the court that it was done for the purposes of delay, and the plaintiff or defendant will thereby lose the benefit of a circuit or term for which the cause is or may be noticed : and if it appear to the court
that such amendment was made for such
be stricken out, and such terms imposed as to the court may seem just. In such case a copy of the amended pleading must be served on the adverse party
On the first head, it will be seen that twenty days is the time allowed to amend in all cases; but the period from which this time is to be computed is variable, according to the varying circumstances of each case. The weight of authority runs at present, that, in all cases in which service by mail is admissible, the time allowed to amend is doubled in practice, and the party has forty days, instead of twenty, for that purpose.- Washburn v. Herrick, 4 How. 15: Cusson v. Whalon, 5 How. 302; 1 C.R. (N. S.) 27. This conclusion seems, nevertheless, to be somewhat doubtful; although these cases stand, for the present, alone and uncontradicted. The provisions as to service by mail, occur in that portion of the Code more peculiarly applicable to purely interlocutory proceedings. The date within which a pleading must be served is, in fact, “ otherwise provided for," (V. sec. 408,) and is imperatively fixed by sections 143 and 153. Under the former, the demurrer or answer must be served within twenty days after the service of the copy of the complaint. Under the latter, the plaintiff may, within twenty days, reply to new matter in the answer. It may well be contended, that these positive limitations cannot be repealed, by implication from other provisions, not directly applicable to the subject of pleading, but inserted, on the contrary, with peculiar reference to the ordinary notices in a suit, and to the subject of interlocutory motions or other applications during its progress. This construction seems the sounder, and works, in fact, no practical hardship, because it is always in the power of the party, if he require it, to obtain further time to plead, by means of an application in the ordinary manner. It may probably be held, however, that, if duly posted within the twenty days, a pleading may be served by mail, in cases where such service is applicable; and therefore it would, perhaps, be imprudent to enter up judgment by default, on the non-receipt of an answer, until sufficient time has been allowed for its transmission by due course
To a certain extent, the right to amend is a stay of proceedings; and, during its continuance, the adverse party, if he proceed during that time, proceeds at his peril.- Washburn v. Herrick, above cited.
Thus, if the plaintiff take judgment within the period allowed to the defendant to amend, that judgment will be set aside, if the defendant afterwards does so, and applies to the court.Dickerson v. Beardsley, 1 C. R. 37 ; 6 L. 0. 389 ; Morgan v. Leland, 1 C. R. 123.
Although, however, neither party will be permitted to take judgment, except at his peril, during the time allowed to his adversary to amend ; still the right of the latter to do so, is not, per se, a stay of proceedings for all purposes. Thus, the cause may be noticed for trial immediately on the service of reply, without waiting until the period within which the defendant may amend his answer has elapsed.
If the defendant waive that right, which he may do, either expressly, or by himself noticing the cause, the plaintiff will be bound to proceed.—Cusson v. Whalon, 5 How. 302; 1 C. R. (N. S.) 27. In Enos v. Thomas, 4 How. 290, it was held, on a similar principle, that, immediately on reply, the plaintiff may move to refer the cause, under sec. 271, without waiting till the defendant's time to amend shall have expired. Of course, however, he will do so, to a certain degree, at his peril, in the event of an amended pleading being subsequently served, by which the subject matter of the original reference may undergo alteration.
No proceeding whatever, on the part of his adversary, can prejudice the right of a party to amend within the time allowed to him. See Washburn v. Herrick, Dickerson v. Beardsley, Morgan v. Leland, above cited. The service of an answer does not accordingly preclude the plaintiff from amending his complaint within the time allowed him. Clor v. Mallory, 1 C. R. 126.
An amended pleading takes the place of and supersedes the original, with regard to the time allowed to the opposite party to amend, as well as in other respects. Thus, in The Seneca County Bank v. Garlinghouse, 4 How. 174, a plaintiff was allowed to amend his complaint, in due time after the service of an amended answer, although a reply had even been served by him to the defendant's original answer in the cause. The right to do so involved, of course, a practical recommencement of the pleadings in the cause ab initio, although issue had already been joined therein, had not the defendant subsequently amended.
It would seem, therefore, from this case, and from those of Enos v. Thomas, and Cusson v. Whalon, also above cited, that the defendant has, in all cases, the right to amend his answer, within twenty days after the service of the plaintiff's reply, although, in the section, the words "answer or demurrer” only appear.
Of course, by amending his complaint, the plaintiff alters the period within which the defendant must answer, and he cannot take judgment with reference to the date of the original service-Dickerson v. Beardsley, 1 C. R. 37, 6 L. O, 389, above cited.
Pleadings in cases transferred from a justice's court, under sec. 60, have been held not to be amendable at all; but this proposition seems to be overruled by the more recent decisions before cited under the head of the jurisdiction of those tribunals.
Where, after taking judgment by default against one of several defendants, the plaintiff afterwards amended his complaint in matter of substance, and not of mere form, it was held that he must serve a copy on the defendant in question, and give him an opportunity of defending, if so advised. The People ex rel Rumsey v. Woods, 2 Sandf. S. C. R. 652, 2 C. R. 18. The fact that, by a subsequent amendment, a previous judgment by default is practically set aside, should therefore be borne in mind by all plaintiffs in similar cases.
Where the opposite party has already given notice of a motion to set aside a pleading as irregular, his costs of that mo
a tion must, in all cases, be paid before an amendment can be allowed. The power to amend, as of course, extends only to cases where the proceedings have been regular, or where the amendment is made before any steps have been taken by the opposite party, in consequence of the irregularity sought to be cured. Williams v. Wilkinson, 5 How. 357; 1 C. R. (N. S.) 20. See also Hall v. Huntley, 1 C. R. (N. S.) 21, (Note.)
Amendments must be confined to matter in existence at the commencement of the suit. Allegations of subsequent occurrences are irregular, and will be stricken out. The remedy in such a case is a supplemental pleading.--Hornfager v. Hornfager, 6 How. 13.
An amendment which involves a change of parties in the action, cannot be made at all, as of course, or without the special leave of the court.--Russell v. Spear, 5 How. 142 ; 3 C. R. 189.