
    JOHN B. MILNER, Respondent, v. EDWARD FRIEL, Appellant.
    
    Insufficient Verification can be Amended_-When a Defendant makes an insufficient verification to an answer, through a mistaken idea that if he swore to its contents positively, it would make him liable to a criminal prosecution, held, upon motion to strike such answer from the files that the Court should have permitted the Defendant to amend his verification. (Heintzel-man v. L’Amoroux, 3 Nev. 377; Latimer v. Ryan, 20, Cal. 628; Arringtoa v. Tupper, 10 Cal. 464; McCullough v. Clark, 41 Cal. 298.
    Appeal from the First District Court.
    The facts appear in the Opinion.
    
      Dana & Strickland, for Appellants.
    
      E. D. Hoge, for Respondent,
   Boreman, J.,

delivered the opinion of the Court.

To the duly verified complaint in this action, an answer with a defective verification was filed, the defendant (Friel) swearing that the answer “ is true as he verily believes, instead of is true of his own knowledge.” The Plaintiff moved the Court to strike the answer from the files on account of this defective verification. The Court sustained the motion, and thereupon the Defendant immediately asked leave to file an answer, same as the first answer, but with the verification amended to conform to the Code. The Defendant seemed fearful that to swear positively to the answer would lay him liable to a criminal prosecution for a felony, and he brought this matter to the attention of the .Court below upon the hearing of the motion. The Defendant did not, therefore, appear to be acting cap-, tuously, but to have had a sincere objection to correcting the verification. Yet when the Court decided against him, decided that his objection was not valid, he proposed to forego his fears and make the proper verification upon the instant. ' The cause would not therefore have been delayed by the amendment. Nor would it have worked any injustice to the Plaintiff. The answer appears to have merits in it, and no objection was made to it in the Court below, upon the ground that it did not set' forth a meritorious defense.

Upon the whole case then we consider that it was extending the discretion of the Court too far to refuse the Defendant leave to file his answer with the amended verification. The judgment of the Court below is therefore reversed, and the cause remanded, to be proceeded with in the lower Court, in accordance with this Opinion.

Emerson, J.

Being satisfied that I committed an error in the Court below, I cheerfully concur in reversing the judgment.  