panied with an affidavit of its truth," the court remarked that the statute contained no qualification or exceptions as to the persons who might make the affidavit.

In Deved v. Carrington (1904) 98 Md. 376, 56 Atl. 818, a suit against indorsers on two overdue promissory notes, the statute (Laws 1898, § 312), by its express terms, permitted the affidavit to the defendant's pleas, in such cases, to be made by a third party on the defendant's behalf, doubtless for the reason that, in some instances, the defense might rest on grounds to which some other person could with more safety and knowledge swear.

The law is well settled that, where a particular allegation is inserted in a bill for the purpose of transferring the jurisdiction from a court of law to a court of equity, that particular allegation in the bill must be verified by the oath of the complainant, or by oath of some other person who knows the facts, on his behalf. Alston v. Jones (1848) 3 Barb. Ch. (N. Y.) 397. And see Campbell v. Morrison (1838) 7 Paige (N. Y.) 157, an application for injunction, wherein it was held that on an application for a general injunction, ex parte, if the complainant has no personal knowledge of the facts on which the right to the injunction rests, he should state the facts on his information and belief, and should annex to the bill the atfidavit of the person from whom he derived his information, and who can swear to the facts.

However, where a pleading was verified by a person other than the party, who stated simply "that the sources of deponent's belief as to the matters not stated upon his knowledge are facts obtained in an investigation made for and in behalf of the said defendant and the statements of a witness, in deponent's possession, relating to the matters referred to in the complaint, and letters and documents in deponent's possession relating to said matters," it was held that the affidavit was defective, since the disclosure of the grounds of belief in the verification amounted to nothing more than the affiant's statement of

his conclusion that the information possessed by him would justify his belief.

III. Formal sufficiency of verification.

a. Allegation of right to verify.
1. Generally.

When a person verifies a pleading in behalf of the party, he should, in his affidavit, state facts showing that he is entitled to verify as being within one of the classes of persons who are, by virtue of statute, authorized to verify for or instead of the party.

Alabama.-Guyton v. Terrell (1901) 132 Ala. 66, 31 So. 83.

California.-Silcox v. Lang (1889) 78 Cal. 118, 20 Pac. 297.

Colorado.-Barrett Min. Co. v. Tappan (1873) 2 Colo. 124. See also Nichols v. Jones (1890) 14 Colo. 61, 23 Pac. 89.

Delaware. St. Joseph's Polish Catholic Beneficial Soc. v. St. Hedwig's Church (1901) 3 Penn. 229, 50 Atl. 535; Wilmington Sash & Door Co. v. Taylor (1911) 2 Boyce, 528, 82 Atl. 86.

Iowa. Turner v. Loomis (1910) 146 Iowa, 655, 125 N. W. 662.

Maryland. Knickerbocker L. Ins. Co. v. Hoeske (1870) 32 Md. 317. Massachusetts.-See Wright v. Coles (1846) 11 Met. 293.

Michigan.-Bergh v. Poupard (1842) Walk. Ch. 5.

Missouri.-Bridgeford v. The Elk (1840) 6 Mo. 356; Hamilton v. The Ironton (1854) 19 Mo. 523.

New York.-Van Horne v. Montgomery (1851) 5 How. Pr. 238; Re Mahoney (1903) 88 App. Div. 140, 84 N. Y. Supp. 329; Myers v. Garrits (1861) 13 Abb. Pr. 106; Rude v. Crandell (1886) 11 N. Y. Civ. Proc. Rep. 11; Re Howell (1876) 2 Redf. 299; People ex rel. Smith v. Allen (1856) 14 How. Pr. 334; Fitch v. Bigelow (1851) 3 N. Y. Code Rep. 216, 5 How. Pr. 237; Boston Locomotive Works v. Wright (1857) 15 How. Pr. 253; Newberger v. Webb (1881) 24 Hun, 347.

North Carolina.-Commercial Nat. Bank v. Hutchison (1882) 87 N. C. 22.

Ohio. Bullock Beresford Mfg. Co. v. Hedges (1907) 76 Ohio St. 91, 81 N. E. 171.

Oklahoma.-Garfield County v. Isenberg (1900) 10 Okla. 378, 61 Pac. 1067; Chicago, R. I. & P. R. Co. v. Mitchell (1907) 19 Okla. 579, 101 Pac. 850. Oregon. The Senorita v. Simonds (1859) 1 Or. 274.

Pennsylvania.-Johnson v. Smith (1893) 158 Pa. 568, 28 Atl. 144; Kinografen v. Henius (1914) 23 Pa. Dist. R. 980.

South Carolina.-Carolina Grocery Co. v. Moore (1902) 63 S. C. 184, 41 S. E. 88.

Texas. Willis v. Lyman (1858) 22 Tex. 268.

Wisconsin. Blaikie V. Griswold (1860) 10 Wis. 294; Morley v. Guild. (1861) 13 Wis. 577; Kirst v. Wells (1879) 47 Wis. 56, 1 N. W. 357; Reichert v. Lonsberg (1894) 87 Wis. 543, 58 N. W. 1030.

Thus, in Hamilton v. The Ironton (1854) 19 Mo. 523, it was held that, when not made by the plaintiff himself, the verification of the complaint should show what means the affiant had of knowing the truth of the particulars specified in the complaint.

In Guyton v. Terrell (1901) 132 Ala. 66, 31 So. 83, a bill brought by a judgment creditor, seeking assets alleged to have been fraudulently conveyed and property concealed, the verification of the bill was by the affidavit of a person who affirmed that he was the agent of the complainant and duly authorized to act as such agent in the matter in question, and that the complainant was a nonresident, residing in the state of Texas, and that the affiant of his own knowledge knew that the facts in the original bill and amendment thereto were true, as therein stated. Some of the facts alleged in the bill were stated as on the knowledge of the complainant. The affidavit positively affirmed the truth of such facts as on the affiant's knowledge. Other facts were alleged on information and belief. It was held that the affidavit was an affirmation that the affiant knew that the complainant was informed and believed as alleged, and that as to both classes of allegations the verification was sufficient.

In Bridgeford v. The Elk (1840) 6

Mo. 356, a suit instituted according to the provisions of the act to provide for the collection of demands against boats and vessels, the affidavit annexed to the complaint stated that "[the affiant], being duly sworn by me, the subscriber, on his oath declareth and saith that the above complaint is true, to the best of his knowledge and belief." It was held that the court below did not err in quashing the complaint, since the affiant, not being the party complaining, did not show what means he had of knowing the truth of any of the particulars specified in the complaint, whether he was clerk, bookkeeper, or agent.

In St. Joseph's Polish Catholic Beneficial Soc. v. St. Hedwig's Church (1901) 3 Penn. (Del.) 229, 50 Atl. 535, an action on a note, the plaintiff filed an affidavit of demand which was signed by its treasurer. The verification was by the treasurer, and read in part as follows: "And said deponent further says that he verily believes that the same is justly and truly due from the said defendant to the said plaintiff." It was held that the affidavit was not sufficient, since the affiant did not swear that he was the treasurer of the corporation.

And to the same effect see Wilmington Sash & Door Co. v. Taylor (1911) 2 Boyce (Del.) 528, 82 Atl. 86, an action by a corporation against a copartnership, wherein there was an affidavit of demand signed by a person as "treasurer," and it was held that the affidavit was defective because the affiant did not swear that he was treasurer.

In Fitch v. Bigelow (1851) 3 N. Y. Code Rep. 216, 5 How. Pr. 237, an action on a promissory note, the complaint was verified by the plaintiff's attorney by a signed affidavit, stating that the "[affiant], attorney for the plaintiff, being duly sworn, says that the foregoing complaint is true of his own knowledge, except as to the matters which are therein stated on his information and belief, and as to those matters he believes it to be true." The statute (Code, § 157) required that where the pleading was verified by the attorney, he should set forth in

his affidavit his knowledge, and the reasons why it was not made by the party. It was held that the verification was defective for failure to show the existence of facts authorizing the attorney to verify.

In Garfield County v. Isenberg (1900) 10 Okla. 378, 61 Pac. 1067, the answer was verified by plaintiff's attorney. The statute applicable (Stat. 1893, p. 70, § 3986) among other provisions declared that "the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney," and (§ 3992) that "when the affidavit is made by the agent or attorney it must set forth the reason why it is not made by the party himself. It can be made by the agent or attorney only, first, when the facts are within the personal knowledge of the agent or attorney; second, when the plaintiff is an infant, or of unsound mind, or imprisoned; third, when the pleading to be verified is founded upon a written instrument for the payment of money only, and such instrument is in the possession of the agent or attorney; fourth, when the party is not a resident of, or is absent from, the county." It was held that the verification was defective since no reason was given why the plea denying the account was not signed and sworn to by the proper officer, and no attempt was made to bring it within any one of the four classes or subdivisions mentioned in the statute.

Where one who signed the petition to an affidavit of garnishment did not describe himself as agent or attorney, although his name is the same as the surname of one of the attorneys who signed the petition, it was held that the affidavit is not sufficient, as the court cannot know that the person who makes the affidavit is one of the persons who signed the petition as attorney for the plaintiff, nor will the court look to the records in the original suit to find information which ought to be contained in the affidavit itself. Willis v. Lyman (1858) 22 Tex. 268.

In Kirst v. Wells (1879) 47 Wis. 56, 1 N. W. 357, an action for goods sold and delivered; the complaint was verified by one of the plaintiff's attorneys. His affidavit was as follows: "[Affiant], being duly sworn, says that he is one of the attorneys for the plaintiffs in the foregoing entitled action, and that the foregoing complaint is true, as deponent verily believes; that such belief is founded upon the admissions of the defendant that said bill is correct, and the said amount due thereon, and from communications had from said plaintiffs in relation thereto; that the reason this verification is not made by said plaintiffs is because neither of them is within said county, and both reside long distances therefrom." The objection urged against the affidavit was "that the attorney who made it stated his grounds for believing that the complaint was true to be 'the admissions of the defendant that said bill is correct, and the said amount due thereon,' when no bill is mentioned in the complaint." It was held that while the verification was informal it complied substantially with the requirements of the statute (Rev. Stat. 1858, chap. 125, § 19), since obviously the bill referred to in the verification meant the account for goods upon which the action was brought.

In an action on two promissory notes, the declaration was verified by one of the attorneys for the plaintiff by an affidavit which read as follows: "[Affiant] says that he is one of the attorneys for the plaintiff in this action; that there is actually due' the plaintiff, as such assignee, on the promissory notes hereto annexed, the sum of $4,298.69." It was contended that the affidavit was not in conformity with the statute (Rev. Stat. chap. 140, § 14), because it did not state that it was made for and in behalf of the plaintiff to the action. It was held that the affidavit substantially conformed to the statute, since, although the attorney did not state in so many words that he made the affidavit on behalf of the plaintiff, yet he swore that he was one of the attorneys to the action, and this fact disclosed his

means of information as to the precise amount due on the notes, and also sufficiently showed his connection with the suit, and authority to make the affidavit. Blaikie v. Griswold (1860) 10 Wis. 294.

In Bergh v. Poupard (1842) Walk. Ch. (Mich.) 5, a motion for the appointment of a receiver on a judgment creditor's bill, it appeared that a rule of court (110) required bills of this description to be verified by the oath of the complainant, or, in case of his absence from the state, or other sufficient cause shown, by the oath of his agent or attorney. It was held that where the bill was verified by the complainant's agent, who was not also the solicitor of the complainant, the jurat must state the person verifying to be the agent of the complainant.

In Re Mahoney (1903) 88 App. Div. 140, 84 N. Y. Supp. 329, it appeared that the verification was by the attorney for the plaintiff. The objection to the verification was that the attorney had not stated sufficient grounds why the affidavit was made by himself and not by the petitioner. It was held that the surrogate properly overruled this objection, since the affidavit of verification showed that all the other papers were in the hands of the attorneys, and that he was more familiar with the facts than the commissioner himself, and the facts recited in the petition showed that they were such as to have been almost entirely, if not wholly, within the knowledge of the attorney.

When an agent or attorney verifies a pleading on his personal knowledge of its material allegations, he must, besides saying that he knows it to be true, set forth his knowledge upon the subject, and when a pleading is verified upon information and belief the form of averments is not material. Morley v. Guild (1861) 13 Wis. 577.

In the Senorita v. Simonds (1859) 1 Or. 274, an action brought on the statute relating to liens on boats and vessels, the complaint was verified by an agent of the plaintiffs, the signed affidavit reading as follows: "[Af"[Affiant], being first duly sworn, says that the foregoing complaint is true

of his own knowledge; that all the facts therein alleged he has a personal knowledge of; that he has been and was the agent of said wharf-boat company, and had the management of said business during the time said indebtedness was incurred." One objection to the verification was that it did not appear that the affiant was the agent of the plaintiffs in the court below. It was held that, from what appeared on the face of the affidavit, his agency was sufficiently manifest, since he acted as agent in making the affidavit, and was recognized as such by those for whom he acted, and it appeared that he transacted the identical business out of which the alleged indebtedness grew.

In Reichert v. Lonsberg (1894) 87 Wis. 543, 58 N. W. 1030, a suit against two partners on an account stated for goods sold and delivered, the complant was verified by an agent of the plaintiffs, who stated in the verification that the complaint was true of his own knowledge. It was held that the verification of the complaint was insufficient because the agent who attempted to verify it did not state what knowledge he had of the facts.

In Van Horne v. Montgomery (1851) 5 How. Pr. (N. Y.) 238, the complaint was sworn to by the cashier of the bank, the affidavit stating that "he had read the complaint and that the same was true according to the best of his knowledge and belief." It was held that, if the cashier was supposed to act as an agent or attorney, the verification was not sufficient, since the affidavit did not set forth his source of knowledge.

In Turner v. Loomis (1910) 146 Iowa, 655, 125 N. W. 662, it appeared that the answer was verified by the defendant's attorney. The statute (Code, 3583) required the competency of an attorney to verify a pleading to appear from his affidavit. The affidavit recited that he was "familiar with all the statements made in the answer and was familiar with the facts in this case, as claimed by the defendant, and that such statements were true as he verily believed." And

this was held sufficient to establish his competency to verify the answer.

In Commercial Nat. Bank v. Hutchison (1882) 87 N. C. 22, the verification of a complaint filed by a corporation was by an officer thereof, and read as follows: "[Affiant] maketh oath that the plaintiff is a corporation duly organized under the laws of the United States; that he is an officer thereof, to wit, the president; and that the facts herein set forth of his own knowledge are true; those otherwise stated he believes to be true." It was claimed that the verification was by an officer, and that it should go further and set forth "his knowledge or the grounds of his belief on the subject, and the reasons why it was not made by the party," as required by statute (Code, § 117). It was held that the verification was sufficient, since a corporation cannot take an oath, and can, therefore, make no verification.

In Silcox v. Lang (1889) 78 Cal. 118, 20 Pac. 297, an action on an injunction bond, it appeared that when motion was made to strike out the answer because it was not verified, the attorney for the defendants asked leave to verify the same himself, and tendered the following verification: "[Affiant] deposes and says, in behalf of the defendants in the above-entitled action, that he has read the foregoing answer and knows the contents thereof, and that the same is true of his own knowledge, except as to those matters which are therein stated on information or belief, and as to those matters that he believes it to be true; that he is the attorney for defendants, and as such attorney the facts are more fully known to him than to said defendants, and therefore he makes this affidavit." Objection was made, on the ground that the affidavit stated no reason why the verification was not made by a party. The objection was overruled, and the answer permitted to be filed, to all of which the plaintiffs excepted. The statute (Code Civ. Proc. § 446) provided that "where a pleading is verified it must be by the affidavit of a party, unless the parties are 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." It was held that the affidavit did not bring the case within the first two conditions, and was insufficient under the third condition in that it did not show that the facts were within the knowledge of the attorney, but only that the facts were more fully known to him than to the defendants.

In Re Howell (1876) 2 Redf. (N. Y.) 299, a petition for leave to issue execution on a judgment obtained against the executors on the merits, a preliminary objection was made on behalf of the executors that the petition was neither signed nor verified by the petitioner. It was held that the statute (Code, § 157) clearly applied to the verification in surrogates' courts, and that the verification of the petition in question did not conform to the requirements of that section in that it did not set out in the affidavit the knowledge of the attor ney, or the grounds of his belief on the subject, or the reason why it was not made by a party.

An affidavit verifying a plea made by a corporation, if made by a competent person, is insufficient if it does not contain the necessary averments required by the statute. Knickerbocker L. Ins. Co. v. Hoeske (1870) 32 Md. 317.

In Johnson v. Smith (1893) 158 Pa. 568, 28 Atl. 144, plaintiff's statement was verified by its agent and manager, and read as follows: "Personally appeared before me, the prothonotary in and for said county, H. W. Bostwick, agent and manager for above plaintiffs, who, being duly sworn, says that the sum of $508.75, with interest from date, is the amount he verily believes to be due and owing from the above defendant to the above plaintiffs upon the instrument in writing recorded, etc., and upon which suit is brought in this case, and that the above statement is true to the best of his knowledge and belief." It appeared that the affidavit required in the rules of the court might be made by the agent or attorney of the party,