its execution, unless by plea, supported by the affidavit of the party pleading it. The court held that while a literal interpretation of the statute would doubtless render necessary the affidavit of all parties uniting in the plea, to deny the execution of a promissory note it was not believed that the intention or language of the statute required all parties to plead, but that, as the statute was enacted to require an affidavit to show prima facie that execution is not carelessly denied, and this being quite as apparent where the plea is verified by one, as when it is verified by all the defendants pleading it, the verification of the plea by one was in compliance with the spirit of the statute.

In Kerr v. Hedge (1861) 12 Iowa, 426, one of the plaintiffs verified the replication by an affidavit in which it was stated that the affiant was not personally acquainted with the matters set up in the replication, but from the information of his codefendant, he believed the facts stated were true in substance and in fact. The statute (Code, § 1745) provided that "a replication not sworn to could not be regarded as evidence for the plaintiff, but it could be considered as a pleading, putting in issue the allegations to which it responds." But another section (1749) provided that such replication must be sworn to by the party himself, "or some one of the parties, when there are several, or by someone showing himself to be possessed of equal information with the party," etc. It was held that the verification was sufficient, coming fully within the requirements of the statutes, as it was made by one of several parties under oath.

In Willett v. Porter (1873) 42 Ind. 250, a proceeding to contest and set aside a will, the complaint and amendments thereof were verified by one of the plaintiffs only, and the defendants moved to dismiss the action as to all plaintiffs who had not sworn to the complaint, and demurred on the ground, among others, that the complaint was not verified by the affidavits of the plaintiffs. It appeared that the statute governing proceedings to con

test a will provided as follows: "Any person may contest the validity of any will, or resist the probate thereof, at any time within three years after the same has been offered for probate, by filing in the proper court his allegation in writing, verified by his affidavit, setting forth," etc. "The allegation of the party contesting must be verified by his affidavit." It was held that the statutory requirement that the allegations of the party contesting must be verified by affidavit is complied with when the complaint has been sworn to by any one or more of the plaintiffs.

In Claiborne v. Castle (1893) 98 Cal. 30, 32 Pac. 807, an action to enforce a vendor's lien on realty, it was insisted that the default of one defendant should have been entered, for the reason that the answer was verified by the other defendant alone, he stating that he also made the affidavit onbehalf of his codefendant. It was held that the necessity for verification of the pleading arose from statute alone, and that the solution of the question was dependent entirely on the statute (Code Civ. Proc. § 446) under which it was quite apparent that a verification of a pleading by one codefendant or coplaintiff was sufficient.

In Kinnaman v. Kinnaman (1880) 71 Ind. 417, an action brought by children and heirs at law of deceased to contest a will, the court remarked that the complaint was duly verified by one of the plaintiffs.

The verification of the statements in an injunction bill by the affidavit of any one of the complainants is sufficient. Hemphill v. Ruckersville Bank (1847) 3 Ga. 435.

In Jones v. Austin (1894) 6 Tex. Civ. App. 505, 26 S. W. 144, a suit brought on an account, two of the defendants did not reside in the county, but their codefendant did have a residence therein. The two nonresident defendants pleaded in abatement their privilege to be sued in the county of their residence. The plea was duly verified by one of them, who stated that he was cognizant of the facts. It was held that this was all that was

necessary to make the plea available to both defendants.

Dod

An affidavit verifying a writ of garnishment made by one of the plaintiffs is a sufficient verification. son v. Warren Hardware Co. (1914) Tex. Civ. App. -, 162 S. W. 852.

In Patterson v. Ely (1861) 19 Cal. 28, an action in ejectment, it was held that it was not necessary that the verification of the complaint should have been made by both of the plaintiffs, the affidavit of one being sufficient.

In Queen Ins. Co. v. Keller (1916) Tex. Civ. App. —, 186 S. W. 359, a petition for temporary injunction, it was held that a plea of privilege, made in behalf of two defendants, was sufficiently verified by one of the defendants to make the plea available for both.

In Williams v. International Grain & S. Bd. (1894) 99 Mich. 80, 57 N. W. 1089, a garnishment proceeding, the affidavit in each case was made by one of the plaintiffs and stated all the requirements of the statute, and that the plaintiffs "are justly apprehensive of loss," etc., "unless a writ of garnishment issue." It was held that where the affidavit is made by one of the plaintiffs, and he swears that they both are justly apprehensive, it must be presumed that he has personal knowledge.

In Queen Ins. Co. v. Keller (Tex.) supra, a petition for temporary injunction, one of the trustees of a church made an application for a writ of garnishment on behalf of all the trustees. The applicant alone made the affidavit in support of the application. It was contended that the affidavit could be made only by the plaintiff in the main suit, to which the garnishment suit was only auxiliary, or by an agent or attorney, and if by an agent or attorney, the capacity of the affiant and his authority must appear in the application of the affidavit. It was held that, as the affiant was one of the trustees and one of the plaintiffs, he had full authority to make the application on behalf of all the plaintiffs for the writs of garnishment, and that he had authority to perform the ministerial act of verification.

However, in Cherryhomes v. Carter (1886) 66 Tex. 167, 18 S. W. 443, an answer setting up the defense of usury was verified by one of the defendants, who not only did not join in the plea, but refused to avail himself of it. The statute (Rev. Stat. art. 2981) was peremptory that "no evidence of usurious interest shall be received on the trial of any cause unless the same shall be specially pleaded, and verified by the affidavit of the party wishing to avail himself of such defense." It was held that the verification was not sufficient.

In Stevenson v. Farnsworth (1845) 7 Ill. 715, the declaration was in assumpsit on a note made payable to the plaintiffs. The defendants pleaded, first, nonassumpsit, and, second, that they did not make and execute the note declared on. A statute provided as follows: "No person shall be permitted to deny on trial, the execution of any instrument in writing, whether sealed or not, upon which any action may have been brought, or which shall be pleaded or set up by way of defense, or set-off, unless the person so denying the same shall, if defendant, verify his plea by affidavit; and, if plaintiff, shall file his or her affidavit, denying the execution of such instrument." Another statute provided as follows: "On actions upon contracts, express or implied, against two or more defendants, alleged to have been made or executed by such defendants, as partners or joint obligors or payors, proof of joint liability or partnership of the defendants, or their Christian or surnames, shall not in the first instance be required, to entitle the plaintiff to judgment, unless such proof shall be rendered necessary. by pleading in abatement, or the filing of pleas denying the execution of such writing, as is required by the 'Act Concerning Practice in Courts of Law.'" It was held that, as it is the person and not the party who is to verify the plea, where there are several defendants, each must for himself verify the plea.

. In Harrison v. Lebanon Waterworks (1891) 91 Ky. 255, 34 Am. St. Rep. 180, 15 S. W. 522, the statute involved (§ 117, subsec. 4) provided that on

motion of a party who files his affidavit, stating his belief that an adverse party, whose pleading has been verified by a person other than himself, knows that a statement thereof in the affidavit mentioned is untrue, and that the motion is not made for delay, the court, if such statement be material, shall require such adverse party to verify the pleading; and, if he fail to do so within a reasonable time, shall treat it, with regard to him, as if it had not been filed. It was held that, where one of the plaintiffs verified the petition, the failure of the other plaintiff to verify his pleading, and his refusal to obey a rule issued on a motion requiring him to do so, the court properly ordered that said pleadings be treated, with regard to him, as if they had not been filed.

In Maryland, there are three early cases decided at about the same time, which are apparently conflicting. Thus it was held that a bill praying for an injunction may be verified by one of the plaintiffs, where there are more than one. Jones v. Magill (1825) 1 Bland, Ch. (Md.) 177; Salmon v. Clagett (1828) 3 Bland, Ch. (Md.) 125.

But in Binney's Case (1828) 2 Bland, Ch. (Md.) 100, it was held that where there are a plurality of defendants, they may join in making answer to the bill, or they may answer separately, or they may make a joint and several answer as best suits their convenience or pleasure; but in whatever form the response may be it is essential, if not waived by the plaintiff, that each defendant should swear to his answer, and therefore, when the answer purports to be the answer of two or more, and is not sworn to by all, it may be taken off the file, or can only be received as the answer of him who has so sworn to it.

In Mooney v. Ryerson (1885; City Ct. Spec. T.) 8 N. Y. Civ. Proc. Rep. 435, the action was by a husband to recover damages for injuries alleged to have been received by the wife through the negligence of the servants of two defendants. The answer was verified by one defendant only, the verification being in the usual form of 7 A.L.R.-3.

a verification by a party pleading alone. It was held that it was sufficient.

But in an early case it was said that although an answer by joint and several defendants named in the title should have been sworn to by all instead of one, yet the oath and signature may be waived by the plaintiffs, by a reply. Fulton Bank v. Beach (1830) 6 Wend. (N. Y.) 36.

And see in Jaillard v. Tomes (1877) 3 Abb. N. C. (N. Y.) 24, an action for goods sold and delivered, in which the answer was verified by one of the defendants' attorneys, who stated in the verification that the ground of his belief as to the truth of the answer was information derived from one of the defendants, who was a partner of another defendant at the time mentioned in the complaint. This statement in the verification was directly contradictory to the statement contained in the answer that the defendants were not copartners. It was held that the other partner must serve an answer verified by himself in the action.

Alfred v. Watkins (1852) N. Y. Code Rep. N. S. 343; Ballard v. Lockwood (1861) 1 Daly, 158; Harley v. Ritter (1859) 9 Abb. Pr. 400, 18 How. Pr. 147; Paddock v. Palmer (1900) 32 Misc. 426, 66 N. Y. Supp. 743.

South Carolina.-Holmes v. Moore (1902) 63 S. C. 182, 41 S. E. 90.

Tennessee.-Moody v. Alter (1873) 12 Heisk. 142.

Thus, where codefendants are jointly liable in an action on a note, it would appear that a verification by one is a verification for both. Alfred v. Watkins (1852) N. Y. Code Rep. N. S. 343.

In an action brought on a contract against the defendants as copartners, the answer was verified by only one of the codefendants. It was urged that "it does not appear thereby that the defendant who makes or attempts to make the same is acquainted with the facts." It was held that the verification was sufficient in this respect, as it appeared from the pleadings, presumptively at least, that the defendant making the verification was "acquainted with the facts." Paddock v. Palmer (1900) 32 Misc. 426, 66 N. Y. Supp. 743.

In Mathis v. Ballard (1911) 73 Misc. 274, 130 N. Y. Supp. 873, an action by four defendants as next of kin of an intestate, to recover a balance alleged to be due, the answer was returned by the plaintiff's attorney on the ground that the verification was insufficient "in that the answer was made by four parties united in interest, and the verification was made by one who is not acquainted with the facts." It was held that the verification was sufficient.

In Warren v. Chambers (1850) 12 Ill. 124, a declaration in assumpsit against the defendants as partners, and containing the common count for money paid and advanced, it was said that when the joint liability of several, sued on a written instrument, is put in issue by a plea in abatement, it is sufficient to verify the plea by the affidavit of one of the defendants, or a third person.

In Butterfield v. Graves (1902) 138 Cal. 155, 71 Pac. 510, an action to

quiet title, it was held that, as the defendants were sued jointly, and it was alleged that they "claim an estate or interest therein adverse to the said plaintiff," the answer was sufficiently verified by the affidavit of one defendant, under a statute (Code Civ. Proc. § 446) providing that verification must be by the affidavit of one party.

Where the claim made by a bill is a joint claim, the affidavit of one of the joint claimants is a sufficient verification. Reed v. Ryburn (1861) 23 Ark. 47.

In Holmes v. Moore (1902) 63 S. C. 182, 41 S. E. 90, an action on two promissory notes and for goods sold and delivered, the verification of the complaint was by one of the members of the firm. It was contended that the verification was not sufficient, because the party who verified did not live in the same county with his attorney. The statute (Code Civ. Proc. § 178) provided as follows: "The verification ... must be 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 acquainted with the facts, if such party be within the county where the attorney resides, and capable of making the affidavit," etc. The verification was held sufficient, since the provisions of the Code did not restrict a party to a suit in verifying his own pleadings, but merely provided that he must verify, leaving unaffected the general principle that a party may always verify his own pleadings.

By direct provision of an early New York statute (Code, § 157), i. was provided that, if there are several parties united in interest and pleading together, "the verification to the pleading may be made by one of such parties acquainted with the facts." Harley v. Ritter (1859) 9 Abb. Pr. (N. Y.) 400, 18 How. Pr. 147.

In Swales v. Grubbs (1890) 126 Ind. 106, 25 N. E. 877, a suit against the heirs and legal representatives of a decedent for the purpose of obtaining a judgment against the estate on certain promissory notes, it was contended that as only one of the defendants had pleaded non est factum the ex

ecution of the notes was admitted. The answer was filed by all of the defendants except the administrator, and was verified by only one of the defendants. It was held that the notes, although referred to in the complaint, were not the foundation of the action, and while possibly it may have been necessary that the execution of the instruments therein referred to should have been denied under oath, it was not necessary that all the heirs should verify the answer denying that their ancestor and grantor executed the notes referred to in the complaint.

When the opposing creditor joining in specifications opposing a discharge in bankruptcy is a partnership, verification may be made by the signing member, or by another partner, if the facts are known to him and not to the member signing the pleading. Re Glass (1902) 119 Fed. 509.

In Deved v. Carrington (1904) 98 Md. 376, 56 Atl. 818, a suit against indorsers on two overdue promissory notes, it appeared that joint pleas of nil debet and nonassumpsit were verified by one of the defendants by an affidavit reading as follows: "On this 19th day of May, in the year 1903, before me, the subscriber, a notary public of the state of Maryland, in and for Baltimore city, personally appeared James Bartol (one of) the above-named defendants, and made oath in due form of law, that every plea so pleaded by the defendants is true, and they admit none of plaintiff's claim to be due and owing, and all is disputed; and further, that the affiant verily believes the defendants will be able at the trial of the cause to produce sufficient evidence to support the said pleas, and that he is advised by counsel to file the said pleas." It was held that the verification was sufficient under the requirement of the statute (Laws 1898, chap. 123, Baltimore City Charter, §§ 312, 313); that the affidavit itself should show that it was made on behalf of all of the defendants.

In Moody v. Alter (1873) 12 Heisk. (Tenn.) 142, wherein an attachment was issued, the affidavit of verification, on its face, purported to have been sworn to by one of the firm of "Moody

& Bigelow," but the name did not appear in the body of the instrument, which was signed "J. W. Moody & Bigelow," and the magistrate certified that it was subscribed and sworn to before him on a certain date. Objection to the sufficiency of this affidavit was taken, on the ground that the individual name of neither of the plaintiffs composing the firm of "Moody & Bigelow" was inserted in the body of the affidavit, nor subscribed thereto, in verification of its contents. The affidavit was held sufficient because the recital that one of the firm of Moody & Bigelow made oath, etc., and the fact that the affidavit was subscribed "J. W. Moody & Bigelow," and attested as subscribed and sworn to, sufficiently complied with the requirements of the statute, and as J. W. Moody's name was signed in full, the addition of the name of Bigelow did not vitiate the affidavit.

In Ashley v. Gunton (1855) 15 Ark. 415, a proceeding in the probate court for the allowance and classification of a claim against the estate of a deceased person, it was held that the claim was sufficiently authenticated under the provisions of the statute by the affidavit of one of the joint claimants.

In Conolly v. Schroeder (1907) 121 App. Div. 634, 106 N. Y. Supp. 303, the verification of the answer was by one of the defendants, stating that he was such, and that the answer was true of his own knowledge except as to the matters therein stated to be alleged upon information and belief, and that as to those matters he believed it to be true. It was contended that the verification was incomplete, in that it did not state that it was made by a defendant acquainted with the facts. The statute (Code Civ. Proc. § 525)* provided as follows: "If there are two or more parties united in interest, and they plead together, the verification of a pleading must be made by at least one of them who is acquainted with the facts, except in certain instances, where it may be made by other individuals. Where the pleadings themselves show that the several defendants are united in interest, and