And again p. 67, "In this country however, equity decides equity, and law decides law. But is there, we ask, for it comes to this, is there in all England a single tribunal which ADMINISTERS JUSTICE? Would it be presumptuous in us, would it be untrue to say there is NOT?

§ 647. If the defendant omit to set up a counterclaim in the cases mentioned in the first sub-division of the last section, he cannot afterwards maintain an action against the plaintiff therefor.

§ 648. When cross demands have existed between persons, under such circumstances, that if one had brought an action against the other, a counter-claim could have been set up, neither can be deprived of the benefit thereof, by the assignment or death of the other, but the two demands must be deemed compensated, so far as they equal each other.

§ 649. The defendant may set forth by answer, as many defences and counter-claims as he may have. They must each be separately stated, and the several defences must refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished. The defendant may also answer one or more of the several causes of action alleged in the complaint and demur to the residue.

Amended Code, § 150.

§ 650. If the answer set up new matter, which is not replied to as provided in the next section, and the issue 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,

unpon such terms as may be just.

See § 130 of original code.

CHAPTER V.

THE REPLY.

SECTION 651. When the answer contains a counter-claim, a reply may be put in, and what it may contain.

§ 651. When the answer contains new matter constituting a counter-claim, the plaintiff may within twenty days, reply to such new matter, denying each allegation controverted by him, or any knowledge or information 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, constituting a defence to the counter-claim.

Amended Code, § 153.

In respect to the reply, we propose this modification; that it shall only be required, when the answer sets up a counterclaim. When the answer is drawn by a very wary or a very unskilful hand, the sentences become sometimes so involved, and the admissions or denials so clogged with qualifications, that it is not easy to separate the new matter from that which is strictly responsive to the complaint. If the pleader would confine himself to facts strictly pertinent to the case, and would state these in distinct allegations separately numbered, there would be no difficulty. When this is not done, and the answer is loosely drawn, the reply under the existing rule may occasion some embarrassment. To obviate this, we propose, that the reply be confined to the case of a counter-claim; in which case it seems indispensible, for the cross demand is of the nature of a new action by the defendant against the plaintiff, to which the latter ought to make answer.

CHAPTER VI.

GENERAL RULES OF PLEADING.

SECTION 652. Verification of pleadings.

653. How to state an accout in pleading.

654. Pleadings to be liberally construed.

655. Irrelevant or redundant matter to be stricken out.

656. Description of real property in a pleading.

657. Judgments how to be pleaded.

658. Conditions precedent, how to be pleaded.

659. Private statutes how to be pleaded.

660. Libel and slander, how stated in complaint.

662. In actions to recover property distrained for damage, answer need

not set forth title.

663. What causes of action may be joined in the same action.

664. Allegation not denied; when to be deemed true.

665. A material allegation defined.

§ 652. 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. The verification must be made, 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, if such party be within the state and capable of making the affidavit; otherwise the affidavit may be made by the agent or attorney of the party. 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 affida

vit is made by the agent or attorney, it must set forth the reason of his making it.

The verification may be omitted, when an admission of the truth of the complaint might subject the party to prosecution for felony. And no pleading, verified as herein required, can be used in a criminal prosecution against the party, as proof of a fact admitted or alleged in such pleading.

Amended Code, § 157.

This section, it will be perceived, is changed from the form which it bears, in the amended code, to that substantially which the Commissioners recommended in their second report. The original code required the pleadings to be verified in all cases, except when the party would be privileged from testifying as a witness to the same matters; the amended code requires it only in those cases where the previous pleading has been verified. So that the plaintiff may in all cases verify his complaint or not, as he pleases; if, however, he do verify it, then the answer must be verified, otherwise it need not. Still the defendant may, if he choose, verify his answer, and in that case the reply must be verified. The difference between the two schemes is this, that the one does not permit a party to make an allegation, when he is not willing to make oath of his belief in it; the other permits him to make what allegations he pleases, whether he believes them or not.

Ought these solemn allegations of the parties, which are called pleadings, and which set forth the cause of action and defence, to be verified or not? The solution of this question depends upon two others: first, whether a party should be allowed to aver what he does not believe; and second, whether there be any better test of his belief, than his own affidavit. Both questions admit of easy answers.

There are several reasons, why a party should not be permitted to aver, in a court of justice, what he does not believe: [CIVIL CODE.]

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First. The courts are, or should be, schools of morals. It becomes them to set virtuous examples. Of all the institutions of society, they should be most sacred to truth. Whenever, therefore, they sanction, connive at, or open the door to untruths, they falsify their own professions, and become the corrupters, rather than the teachers of mankind.

Second. Men should be protected, as far as possible, against false charges. It is signally unjust, that any person should vex another with a claim, founded upon statements which he does not believe. Nay more, it is the highest duty of society, to protect every member of it in the enjoyment of his rights. What sort of protection does it afford, if it allows their rights to be assailed by every adventurer, even though he furnishes, not only no security against his misconduct, and no proofs of his charge, but no test of his sincerity, not so much even as his affidavit of belief in it.

Third. Lawsuits are a disadvantage to society at large. They require a large array of public officers. They require the attendance of citizens, either as jurors or as witnesses, to the detriment of their own affairs. It seems consequently most fit, that a check, at least as great as this, should be interposed to the prosecution of frivolous or fictitious lawsuits.

Fourth. If the party be not confined in his pleading to what he believes, no adequate reform in pleading can ever be affected. Should the rule adopted by the last legislature be retained, plaintiffs may put in the old form of declarations as complaints under the code; defendants then must answer every allegation specifically, or it will be taken as true. Will this be tolerated any considerable length of time? It will not; and then either the oath will be required; or this rule of pleading will be abrogated, and the general issue, as formerly brought into use.

If then it be clear, that no party should be allowed to aver in a court of justice what he does not believe, the remaining inquiry is, whether there be any better test of one's belief than his affidavit. Here there seems no room for question. The oath is the universal test applied to the consciences of witnesses. If it be good for the witnesses, it is equally good for the litigants.

What reason is there, that the affidavit should not be re