
    N. R. Jones &c. v. Pearce & Son.
    Pleadings — Amended Answer as Counter-claim Piled.
    Where the allegations in an amended counter-claim, show facts material to the issue, on motion, it should he permitted to he filed, it having the effect of requiring the plaintiff to verify his defense to the the counter-claim. •
    APPEAL FROM BATH CIRCUIT COURT.
    April 24, 1869.
   Opinion of the Court by

Judge Hardin:

This suit was brought in February 1862 when business in the courts, if not suspended, was greatly interrupted by the Civil war then flagrant and raging, and at the next term an answer and counter-claim were filed which do not appear to have been verified by any one.

Nevertheless in June 1864 a reply to the counter-claim seems to have been filed, which was not signed or verified. Prom that time the case seems to have languished without even an order of continuance until the 20th of March 18 6 Y, when the defendants presented and moved to be permitted to file an amended answer and counter-calim, verified by the affidavit of N. E. Jones, one of the defendants, stating that he believed the statements thereof were true, and that the facts were in the personal knowledge of the plaintiffs, and the attorney of the plaintiffs could not truthfully verify, by his oath and affidavit, and answer thereto.

The alegations of the amended counter-claim, appear to have been material and the motion had the effect of requiring the plaintiffs to verify their defense to the counter-claim according to sect. 611 of the Civil Code, as amended in 1865.

And this, under all the circumstances of the case, the court should, we think, have, permitted, before trying the case, and for the error in refusing to do so judgment should have been set aside.

Wherefore the judgment is reversed and the- cause remanded for a new trial and for further proceedings not inconsistent with this opinion.

Simpson, Nesbitt & Gudgell, for appellant.

Wadsworth, Lacy, for appellee.  