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Getty agt. The Hudson River Rail Road Co.
in separate actions. If such is held to be the present rule of practice, the very object of having law and equity administered in the same tribunal and in the same forms of proceeding will be defeated. It was formerly considered a great evil that in a suit at law the plaintiff could be turned out of court, on the ground that his relief was in chancery; and that where a bill was filed in the Court of Chancery, it might be dismissed, on the ground that the complainant had an ample remedy at law. The evil is still just as great as it was formerly, if a party can have only legal or equitable relief in the same action. In such case, if he commences his action asking for equitable relief, as for instance a specific performance, and it turns out that he is not entitled to it, but only to legal relief, by way of damages, he might perhaps, if such strictness is to govern, be put to a new action to obtain redress. This certainly ought not to be; and such a strictness is hostile to the whole spirit of the change that has been made. In trying such a cause at the circuit, I should most certainly allow whatever amendment in the pleadings was necesssary to give the party redress. If the plaintiff had asked for equitable relief, and it turned out that he was entitled to legal relief only, I should permit him to take it in that form. And if he had asked for legal relief only, when he was entitled to both legal and equitable relief, I should allow the proper amendment to administer complete justice in the case. The power to amend, authorized by the Code, is ample for such purpose. Now the last case of amendment I have mentioned as permissible at the circuit, is precisely what is claimed in this case, with this difference only, that it is claimed to be made here, before issue joined, and when, of course, the defendant has abundant time and opportunity to prepare to meet the claim at the circuit.
I see no objection in this case to uniting claims for both legal and equitable relief in the same action. Both depend on the same transaction and both are necessary to indemnify the plaintiff for past, and to protect him against future injury.
I think the proper course, under our present system of practice, is to give the party whatever relief is applicable to the facts put
Southworth and others agt. Curtis.
in issue in the pleadings and established on the trial, whether such relief be legal or equitable, or both. And I see no reason against uniting in one action claims for both legal and eqiutable relief, when they are not inconsistent with each other (Linden agt. Hepburn, 5 How. Pr. R. 188). Substantial justice must no longer be sacrificed to mere form and technicality.
It is said that different modes of trial are prescribed for legal and equitable issues. But they are not necessarily to be tried differently, for 9 254 of the Code gives ample power to the court to direct that the latter class be tried before the same tribunal, which is prescribed by sections 252 and 253 for the former class. Nor is the distinction at all material; in as much as the court adjudges the relief in all cases, both legal and equitable, on the facts established, whether they were found by the court itself, or by a jury.
I think the amended complaint is regular, and the motion must therefore be denied with $10 costs.
SOUTHWORTH AND OTHERS agt. CURTIS. Where a plaintiff in verifying a complaint, swears positively that it is true, it
is in law swearing that it is “true to the knowledge" of the plaintiff, as re
quired by $ 157 of the Code. A notice of assessment to the defendant in an action on contract for the recovey
of money only, under 5 246 is not necessary where the complaint is properly verified.
Pulaski Circuit and Special Term, November 1851. This action is founded upon two promissory notes given by defendant to the plaintiffs. A demurrer to the complaint was overruled as frivolous and judgment ordered for the plaintiffs, which was accordingly entered without giving to the defendant or his attorney, a notice of assessment under section 246 of the Code. This motion is made to set aside the judgment as irregular, for the want of such notice. Notice of appearance by an attorney for
Southworth and others agt, Curtis.
the defendant in the action was served simultaneous with the demurrer.
The affidavit verifying the complaint, and upon which the question arises, is in these words: “Madison county, ss: Philip F. Southworth, one of the plaintiffs in the above entitled cause, being duly sworn says, that he has heard the foregoing complaint read, and that it is true, except as to the matters stated on information and belief, and as to those matters he believes it to be true.”
On the argument it was not disputed that Southworth was a party to the action as recited in the affidavit.
Every averment in the complaint, the execution of the notes, delivery to the plaintiff, and indebtedness, is stated positively, not upon information or belief.
L. Fowler, for the Motion.
J. P. WHITTEMORE, Opposed. HUBBARD, Justice--The question on this motion is as to the sufhciency of the affidavit verifying the complaint. The particular objection is that under section 157 of the Code, it should have stated that the complaint was true to the knowledge of the party deposing. It is, however, to be observed that the Code does not prescribe the form of the affidavit, but requires when made by a party to the action, that it shall be to the effect that the complaint is true to his knowledge, except as to matters stated on information or belief, and as to those he believes it to be true.
I regard this affidavit as a sufficient verification. The complaint contains positive averments of a cause of action; nothing is alleged on information, and hence the affidavit verifying its truth, implies that it is to the knowledge of the deponent. That this is its legal effect, is apparent from the consideration that if untrue or false, or in other words, if the party deposing had no knowledge whatever of the truth of the complaint, he might be indicted for perjury.
Upon trial it is always understood, when a witness swears to
Southworth and others, agt. Curtis.
the existence of a fact material to the controversy, he swears from his personal knowledge, although he does not in words so state; and if his testimony proves to be false, or he had no knowledge of the fact to which he affirmed, an indictment would lie. The law regards the substance, the intent and legal effect of the oath, rather than its phraseology, on the question of perjury.
In this case the plain import and intent of the affidavit is to verify absolutely, and upon sufficient knowledge, the truth of the complaint. If the words “to deponent's knowledge," had been added, its legal effect would have been precisely the same.
The Codes of 1849 and 1851 are not materially different on the subject of verifying the complaint. The latter in addition to the former, requires that in a case of several plaintiffs united in interest, the affidavit must be made by some one acquainted with the facts.
It was supposed that this affidavit was defective in not stating that the deposing party was acquainted with the facts. But this objection has already been answered in the construction given to the affidavit, nor do I think taking this portion of the section with the preceding, that it shows that the legislature in amending section 157, intended that the affidavit should specifically state that the party making it, when one of several plaintiffs united in interest, was acquainted with the facts. It seems to me clearly where a party swears positively that a pleading is true, he must in law be understood as swearing that he knows it to be so, and if untrue, or he does not know it to be true, he must abide the consequences of wilful and corrupt perjury.
This affidavit I therefore deem sufficient; and as the complaint was properly verified, no notice of assessment before the clerk was essential, and the motion must be denied, with $10 costs of opposing
Ward agt. Davis and others.
WARD agt. DAVIS AND OTHERS.
argument at a special term held in a different county in the district from that
Fulton Special Term, April 1851.
for Defendants. WILLARD, Justice.—This action was brought against the defendants as directors of the Saratoga and Schenectady Rail Road Company, to recover damages sustained by the plaintiff, by reason of a defect in the road. The defendants have demurred to the complaint. The place of trial indicated in the complaint is Saratoga county. The plaintiff now moves for judgment on the demurrer, at the special term in Fulton county; and as the defendants do not appear to argue the demurrer, the question is, can an issue of law be brought to trial in a county other than that designated in the complaint, where no special order has previously been made by the court, changing the place of trial.
A trial is defined by the Code, to be the judicial examination of the issues between the parties, whether they be issues of law or of fact (9252). These issues, whether of fact or of law, are required to be tried before a single judge, as follows: issues of fact at the circuit court, and issues of law at a circuit court or special term ($ 255). An action like the present, is required to be tried in the county in which the parties, or any of them shall reside at the commencement of the action; or if none of the parties shall reside in the state, the same may be tried in any county which the plaintiff shall designate in his complaint; subject, however, to the power of the court to change the place of trial in the cases provided by law (f 125). The complaint states that the place of residence of the plaintiff was, at the time of the