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1. The word “attorney,” refers to the attorney at law and not in fact. A pleading subscribed by an attorney in fact, without authority so to do, is void. Direy v. Pollock, 8 Cal. 570.
2. Where an attachment was issued on a complaint, which was a printed form with the blanks filled up by the clerk, at the request of plaintiff, but no name signed to it until the next day, and after other attachments on the same property, when it was signed by the clerk, with the name of plaintiff's attorney : held, that the action of the clerk, though not correct, was only an irregularity, and the complaint was not void. Ib.
3. An answer unverified to a verified complaint, may be stricken out on motion, and an application for a judgment as upon default may be made at the same time. Drum v. Whiting, 9 Cal. 422.
52. [1860.*] The verification of the answer or replication required in the last section may be omitted, when an admission of the truth of the complaint or answer might subject the party to prosecution for felony or misdemeanor.
1. This provision sustained. Drum v. Whiting, 9 Cal. 422; Blaisdell v. Raymond, 5 Abbott, 144.
53. When an action is brought upon a written instrument, and the complaint contains a copy of such instrument, or a copy is annexed thereto, the genuineness and due execution of such instrument shall be deemed admitted, unless the answer denying the same be verified.
1. In an action on a promissory note by a special indorsee against the maker, the plaintiff must prove at the trial the genuineness of the indorsements, although the defendant has not denied their genuineness under oath. Grogan v. Ruckle, 1 Cal, 158.
2. A party is not required to deny an indorsement under oath. Youngs v. Bell, 4 Cal. 201.
54. [1860.*] When the defense to an action is founded upon a written instrument and a copy thereof is contained in the answer, or a copy is annexed thereto, the genuineness and due execution of such instrument shall be deemed admitted, unless the replication denying the same be verified.
55. In all cases of the verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and as to those matters, that he believes it to be true. And where
* Statutes of 1860, 000.
a pleading is verified, it shall be by the affidavit of the party, unless he be absent from the county where the attorney resides, or from some cause unable to verify it, or the facts are within the knowledge of his attorney or other person verifying the same. When the pleading is verified by the attorney, or any other person except the party, he shall set forth in the affidavit 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; or 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, except that in actions prosecuted by the attorney general in behalf of the state, the pleading need not, in any case, be verified.
1. Where the complaint is verified, it is no error to allow the defendant to verify his answer before trial, unless it is shown that the plaintiff is thereby taken by surprise. Angier v. Masterson, 6 Cal. 61.
2. The objection to the want of verification to the declaration should have been made either before answer or with the answer. It comes too late after answer. Greenfield v. Steamer "Gunnell,” 6 Cal. 67.
3. When from the nature of the facts alleged, it must be presumptively within the knowledge of the defendant, the answer should be positive one way or the other, and a denial according to recollection is evasive. And when the contrary is not presumptively within his knowledge, then a denial of all knowledge or information is insuffi. cient. Curtis v. Richards, 9 Cal. 33; Humphries v. Mc Call, ib. 59.
4. The word " belief” is to be taken in its ordinary sense, and means the actual conclusion of the party drawn from information. Positive knowledge and mere belief cannot exist together. Humphries v. McCall, ib. 59.
5. The verification of an answer may be omitted whenever the defendant would be excused from testifying as a witness to the truth of any matter denied by such answer. Drum v. Whiting, ib. 422; Blaisdell v. Raymond, 5 Abbott, 144.
6. To a complaint verified, the defendant by mistake filed a copy of the original verified answer; parties took depositions and went to trial ; when plaintiff closed his case, he then asked for a judgment by default, on perceiving the omission, which the court allowed : held, it was error, and the court should have permitted the defendant to verify his answer. Arrington v. Tupper, 10 Cal. 464.
7. A verification before a county recorder under our statute is sufficient. Pfeiffer v. Rhein, Cal. July T. 1859.
8. If the affidavit merely states that the pleading is true, without stating that it is true to the knowledge of the affiant, it is defective. Williams v. Reil, 5 Duer, 601.
9. An affidavit verifying a pleading is defective in using the words “information and belief” instead of “information or belief.” It may however be amended. Davis v. Potter, 4 How. Pr. 155.
10. When the verification is by the attorney, he must set forth his knowledge or the
ground of his belief on the subject, and the reason why it was not made by the party. Fitch v. Bigelow, 5 ib. 237 ; Stannard v. Muttice, 7 ib. 4; People v. Allen, 14 ib. 334.
11. An attorney may verify in two cases ; when the action is founded on a written instrument in his possession, and when all the material allegations of the pleading are within his personal knowledge. Mason v. Brown, 6 ib. 481; Treadwell v. Fassett, 10 ib. 184; Boston Locomotive Works v. Wright, 15 ib. 253.
12. The effect and true construction of the oath is, that so far as the matters in the pleading are within the knowledge of the party, they are true, and as to the residue, he is either informed or believes them to be true. Truscott v. Dole, 7 ib. 221.
13. If the complaint is improperly verified, the answer may be pleaded without verification. Waggoner v. Brown, 8 ib. 212.
14. If the verification of a pleading is deemed insufficient, the opposite party may test the question by omitting to verify his answer to it. Strauss v. Parker, 9 ib. 342.
15. The verification by an attorney who has the note sued on in his possession, is sufficient. Smith v. Rosenthall, 11 ib. 442; contra, Meads v. Gleason, 13 ib. 309.
16. It should follow the language of the code in the essential form there given. Tibballs v. Selfridge, 12 ib. 64.
17. In an action against husband and wife to set aside a deed of lands made to the wife by her father, the answer of the defendants should be verified by the wife as well as by the husband. Youngs v. Seeley, ik. 395. 1 2 Nowe IrR
18. In what cases a verification may be made by a person other than the party to a record. Meads v. Gleason, 13 ib. 309.
19. If it be doubtful whether the verification be sufficient or not, it is better generally to treat it as sufficient, and make no question about it. Wilkin v. Gilman, 13 ib. 225.
20. Where an answer to a complaint in an action against the maker and two indorsers of a promissory note is verified by one of the defendants only, it is not sufficient; each should verify his answer whether put in unitedly or separately. Hull v. Ball, 14 ib. 305.
21. The complaint and answer were both verified by the respective attorneys, on information or belief, without stating the grounds, and both were held insufficient. The answer was allowed to stand. Bank of Maine v. Buel, ib. 311.
22. A verified pleading must be construed so as to make all its parts, if possible, harmonize with each other. Ryle v. Harrington, 4 Abbott, 421.
23. The defendant is not excused from verifying his answer to a sworn complaint on the ground that the complaint charges him with fraud in the making of the assignment which it is the object of the action to have set aside. Wolcott v. Winston, 8 ib. 422.
56. It shall not be necessary for a party to set forth in a pleading the items of an account therein alleged, but he shall deliver to the adverse party, within five days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court, or a judge thereof, or a county judge, may order a further account, when the one delivered is too general, or is defective in any particular.
1. The party who is not satisfied with the bill should return it and move for another. It is too late to object at the trial. Dennison v. Smith, 1 Cal. 437.
2. This account may be enforced by motion at any time before trial. Yates v. Bigelow, 9 How, Pr. 186.
3. An order for a bill of items, although accompanied by a stay of proceedings, no longer operates of itself as formerly, to enlarge the time of the defendants to plead. Platt y. Townsend, 3 Abbott, 9.
4. A plaintiff is not bound, in giving a bill of particulars, to furnish offsets or payments which he has volunteered to credit defendant, in his complaint. Williams v. Shaw, 4 ib. 209.
57. If irrelevant or redundant matter be inserted in a pleading, it may be stricken out by the court on motion of any person aggrieved thereby.
1. When the husband and wife are nominally joined as plaintiffs, but the cause of action as set forth in the complaint was a contract only with the husband, the name of the wife should be stricken out as surplusage. Warner v. "Uncle Sam,” 9 Cal. 697.
2. On a motion to strike out, the papers should point out the precise parts at which the objections are aimed. Benedict v. Dake, 6 How. Pr. 352.
3. This motion is not a substitute for demurrer. Harlow v. Hamilton, ib. 475; Bement y. Wisner, 1 Code R., N. S., 143.
58. In an action for the recovery of real property, such property shall be described, with its metes and bounds, in the complaint.
1. Where a declaration describes land by a certain name, this is as good a description as one by metes and bounds, if it can be rendered sufficiently certain by evidence. Castro v. Gill, 5 Cal. 40.
2. Actions for the foreclosure of a mortgage are not governed by this section. Emeric v. Tams, 6 ib. 155.
3. The following notice of a mechanic's lien does not contain such a description of the premises as the statute contemplates : "A dwelling house lately erected by me, for J. W. Conner, situated on Bryant street, between Second and Third streets, in the city of San Francisco, on lot No. —.” The fact that Conner owned no other building on that street, would not cure the defect. Montrose v. Conner, 8 ib. 344.
4. A complaint defective in a proper description is demurrable. Duffy v. Brady, 4 Abbott, 432.
59. In pleading a judgment, or other determination of a court or officer of especial 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.
1. It is a good defense to an action upon a judgment, whether brought by the original judgment creditor or his assignee, that the judgment was fraudulently obtained. Dobson v. Pearce, 2 Kern, 156 ; 1 Abbott, 97.
60. 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 establish on the trial the facts showing such performance.
1. When the declaration states a condition precedent, and fails to aver performance, the defect must be taken advantage of by demurrer. Happe v. Stout, 2 Cal. 460.
2. The allegation that plaintiff fully performed on his part all the conditions of his contract, is sufficiently explicit. Cal. Steam. Nav. Co. v. Wright, 6 ib. 258.
3. In a complaint upon a bond by a defendant in an action, for the delivery of property replevied, or the release of property attached, the conditions precedent of the bond inust be set forth in the complaint. Palmer v. Melvin, ib. 651 ; Chambers v. Waters, 7 ib. 390; Nickerson v. Chatterton, ib. 568.
4. Where a right of action is to accrue upon the performance of an act, that performance must be averred in order to recover, as when payment of a debt is a condition precedent to plaintiff's right to recover on certain notes, the payment must be averred. Rogers v. Cody, 8 ib. 324.
5. Where a person by his contract engages to do an act, performance is not excused by an inevitable accident. Under an averment of performance of a covenant, evidence in excuse of non-performance is inadmissible. A condition precedent must be strictly performed, to entitle a party to recover. Oakley v. Morton, 1 Kern. 25.
6. Facts showing performance are to be stated ; not circumstances, which are mere evidence; nor mere legal conclusions. Hatch v. Peet, 23 Barb. 575.
61. In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title, and the day of its passage, and the court shall thereupon take judicial notice thereof.
62. In an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose ; but it shall be sufficient to state generally, that the same was published or spoken concerning the plaintiff; and if