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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. McAvoy, 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. A very 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; McGown 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. O. 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.

Mc Coun, 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 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 provisions 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.

CHAPTER III.

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

1. By amendment, as of course.

2. By amendment on leave obtained from the court.

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

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