Springsted agt. Robinson, 8 How. Pr. 41

Welles, Justice. The first answer, I presume was prepared in view of the cases of Hill vs. Muller (2 San. Sup. C. R. 684), and White vs. Cummings (3 id. 716). As the law stood when those cases were decided, the answer would, in my judgment, have been sufficient, and as a pleading would have had the effect „ of controverting the facts stated in the complaint. Since then, the provision of the Code, on the subject of verifying pleadings (§ 157) has been amended.

By § 133 of the Code of 1848, every pleading, except the demurrer was required to be verified, but the verification might be omitted where the party would be privileged from testifying as a witness to the same matter. In the Code of 1849, the provisions on the subject are contained in § 157, and did not require a defendant to verify his' answer, nor the plaintiff his reply, unless the pleading answered was verified. If such pleading was verified, the answer to it was required to be verified.

But in the amendments of 1851, § 157 has the following clause: “ The verification may be omitted, when an admission of the truth of the allegations might subject the party to prosecution for felony.” The amendments of 1852 made no change in this section. The first answer was not in accordance with this provision, either in form or substance. It did not contain an answer to the facts stated in the complaint, or show an excuse for not verifying an answer as contemplated by § 157 as amended in 1851. The excuse was that an answer on oath might subject the defendant to a criminal prosecution. That was not sufficient.

The

section as amended, excuses the party from verifying his pleading, only when an admission of the truth of the allegations to be answered may subject him to a prosecution for felony. The first answer, was no answer at all to the facts stated in the complaint, and was, therefore, properly held frivolous. The defendant was as much hound to answer the allegations of the complaint, as in any other case. But under the leave given to amend, the defendant has put in a full answer, by which issue is taken upon the whole complaint; and the question is, whether he is excused from verifying it.

There are several adjudications on this subject under the Codes of 1848 and 1849, but none that I have met with, under the

section referred to as amended in 1851. It is contended on behalf of the plaintiff that the court should be able to see from the pleading alone, that an admission of the truth of its statements might subject the party to a prosecution for felony, and that the affidavit of the party offering the excuse, that such might be the consequences of the admission, is not to be received as evidence in support of his claim to immunity.

Whatever might be the rule in a case where the party’s affidavit was the only evidence in support of his excuse, I think in the present case it would be too much to say that the defendant’s affidavit is the only evidence. Looking at the complaint, it appears to me it may be perceived that an admission by the defendant of the truth of its allegations, might subject him to the consequences against which the law is intended to protect him. It charges him with an assault and battery upon the plaintiff.

The plaintiff, or some other person, may have the intention of instituting a criminal prosecution against him for an assault and battery with intent to kill or to maim. The plaintiff may know that a violent outrage has been committed upon him, and may be satisfied that it was done with a felonious,intent; but he may entertain doubts as to the identity of the person who committed it. .

With regard to the defendant, he may only have a suspicion; and if he can be compelled in a civil action to admit his connection with the transaction the plaintiff may be induced to institute a criminal prosecution, relying upon other evidence to establish the quo animo. Thus, by admitting the allegations in the complaint, he may be subjected to prosecution for felony. And who shall say whether such exposure or danger exists, but the defendant himself?

He may be conscious that he committed the assault, and whether he be innocent of any felonious intent or not, his exposure to such prosecution would be the same; and I apprehend he ought not to be required to state the particular facts and circumstances which led him to such conclusion, as that might defeat the spirit and policy of the provision in question. When a witness on the stand declines answering a question put to him, on the ground that his answer would tend to degrade him; he is excused, on a similar principle, from disclosing thé circumstances upon which his objection to testify is founded.

If it is said that the concluding sentence of the section, viz: that s‘ no pleading can be used in a criminal prosecution against the party as proof of a fact admitted or alleged in such pleading,” protects the party against all such consequences and exposures—I answer that the provision is general, and designed as a protection to the party in all criminal prosecutions, whether for felonies or misdemeanors, founded upon the facts so admitted or alleged.

Now the party is not to be excused from verifying his pleading in a civil action, ' although the facts admitted may subject him to a criminal prosecution for an offence, provided . it be less than a felony; and then the provision in question comes in as a shield against having the pleading used against him for the purpose mentioned, in any criminal prosecution.

But if the admission may subject him to a prosecution for a felony, although the pleading, whatever admissions or allegations it may contain, can not be used against him on such prosecution, nevertheless, the plain language of the previous clause is that the party is not bound to verify his pleading. The legislature could not have contemplated that any other effect should be given to that clause, than that the party should not be compelled to make any admission, however true, that might lead or tend to a prosecution for felony in some such sense as I have supposed.

For any other purpose, the clause seems to he utterly useless and ineffectual; and when it can be seen from the pleading to be answered, that an admission of the truth of its allegations, without the protection of the concluding saving clause of the section, might subject the party answering it to a proseeuton for felony; or with that protection, might expose him to detection, and thus lead to such prosecution, I think his general affidavit that such might be the effect or consequence of the admission, should be received.

Upon the whole, I am of the opinion that the amended answer should be permitted to stand, as valid and sufficient, without being verified.