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CHAPTER III.

THE ANSWER.

SECTION. 128. Answer what to contain.

129. May set forth all the grounds of defence.

130. If no reply and judgment on answer, plaintiff may amend

§ 128. The answer of the defendant shall contain:

1. In respect to each allegation of the complaint controverted by the defendant, a specific denial thereof, or of any knowledge thereof sufficient to form a belief;

2. A statement of any new matter constituting a defence, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.

§ 129. The defendant may set forth in his answer, as many grounds of defence as he shall have. They shall be separately stated, and may refer to the causes of action which they are intended to answer, in any manner by which they may be intelligibly distinguished.

§ 130. If the answer set up new matter which is not replied to as provided in the next section, and the action be tried on complaint and answer alone, and judgment be given thereon for the plaintiff, the court may permit the defendant to withdraw or amend the answer, upon such terms as shall be just.

CHAPTER IV.

THE REPLY.

SECTION. 131. Reply, when to be put in, and what to contain.

§ 131. When the answer shall contain new matter, the plaintiff may within twenty days, reply to it, denying particularly each allegation controverted by him, or any knowledge thereof sufficient to form a belief; and he may allege, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended, any new matter not inconsistent with the complaint, in avoidance of the answer.

The reply is introduced, in order to give the defendant the benefit of having the allegations in his answer, which the plaintiff does not deny, taken as true, in the same manner as those of the complaint not denied in the answer.

It is also just that the plaintiff should apprise the defendant of any matter he intends to set up in avoidance of the answer.

In most cases the issue will be complete without a reply. It will only be necessary, where there is new matter in the answer, the truth of which the plaintiff controverts. It has been often suggested, in regard to the old system of chancery practice, that if the plaintiff were bound to specify in his replication, the particular parts of the answer he intended to controvert, it would narrow the issue and save much testimony.

CHAPTER V

GENERAL RULES OF PLEADING.

SECTION 132. No pleading but complaint, demurrer, answer and reply. 133. Pleading to be verified.

134. Need not state presumptions of Law, nor matters judicially noticed. 135. How to state an account.

136. To be liberally construed.

137. Irrelevant and redundant matter to be stricken out.

138. Judgments, how to be pleaded.

139. Conditions precedent, how to be pleaded.

140. Private statutes, how to be pleaded.

141. Libel and slander, how stated in complaint.

112. What answer may contain, in such cases.

143. What causes of acti ›n may be joined in the same action.
144. Allegation not denied, to be deemed true.

These rules perhaps sufficiently explain themselves. Their object is, to dispense with unnecessary statements, to require conciseness, and to unite in one action, all the controversies between the same parties which can be conveniently disposed of together.

§ 132. No other pleading shall be allowed, than the complaint, demurrer, answer and reply.

§ 133. Every pleading must be subscribed by the party, or his attorney, and the complaint, answer and reply, must be verified by the party, his agent or attorney, to the effect that he believes it to be true. But the verification may be omitted, when the party would be privileged from testifying, as a witness, to the same matter. And no pleading, verified as herein required, shall be used in a criminal prosecution against the party, as proof of a fact admitted or alleged in such pleading.

By the verification of pleadings in the qualified manner here proposed, several important advantages are gained. The system of pleading heretofore in use, has encouraged, if it has not absolutely required, fictitious statements, until men otherwise scrupulous, have lost sight of all limits of veracity in

the character of their allegations in pleading. It is designed to bring back to legal allegations, made in solemn form in writing, at least the same regard to truth, that prevails between members of society, in their daily communications to one another. It is not required of a party, that he state absolutely, that the matters pleaded are true, inasmuch as his knowledge may not extend to the whole case; but it is intended to put him upon his veracity, and to require him to state nothing, that he does not believe to be true.

It will have a beneficial effect, under the rule provided in section 114, that matters alleged by the one party, and not denied in the pleading of his adversary, shall be taken as true. By this means the issue is narrowed down to the real matter in controversy between the parties, and all the facts in the case, about which, out of court, there is no real difference, are established on the trial, without the trouble and expense of calling witnesses.

It often happens that witnesses are dead, or absent, and in such case the verification required to the denial, may save the right of action. It is true, that an unconscientious man might tell his attorney a falsehood, and induce him to believe it, and to swear to the pleading, yet under the present system, without oath, the most scrupulous man does not hesitate to plead the general issue, which often includes a denial of what he would not deny in conversation. Under the present system, also, the defendant is obliged to swear that he believes he has a good defence, before he is permitted to defend on the trial. If this be just, it cannot be wrong to require the same oath of both parties, at an earlier stage of the action, and before they have put a falsehood in their pleading on the files of the

court.

§ 134. Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in a pleading.

§ 135. It shall not be necessary for a party to set forth in a pleading, the items of an account therein alleged,

where they exceed twenty in number; but he shall deliver to the adverse party, within ten days, after a demand thereof in writing, a copy of the account verified by his own oath, or that of his agent, or attorney, to the effect that he believes it to be true, or be precluded from giving evidence thereof.

§ 136. In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.

§ 137. If irrelevant or redundant matter be inserted in a pleading, it may be stricken out, on motion of any person aggrieved thereby.

§ 138. In pleading a judgment, or other determination 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.

§ 139. In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts, showing such performance; but it may be stated generally, 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.

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