Contents of

affidavits.

Allegations, how construed.

Fictions.

Title not changed.

Copy of action, &c.

Redundant matter stricken out.

Set-off withdrawn.

contracts, express or implied, for the payment of money

only.

SEC. 123. 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 knowledge of the agent or attorney.

Second, When the plaintiff is an infant, or cf 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.

SEC. 124. In the construction of any pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.

SEC. 125. All fictions in pleadings are abolished.

SEC. 126. The title of a cause shall not be changed in any of its stages.

SEC. 127. If the action, counter claim, or set-off be founded on account, or on a note, bill or written instrument, as evidence of indebtedness, a copy thereof must be attached to and filed with the pleading, except in actions founded upon notes issued to circulate as money. If not so attached and filed, the reason thereof must be shown in the pleading. SEC. 128. If redundant, scandalous or irrelevant matter be inserted in any pleading, it may be stricken out, on motion of the party prejudiced thereby, and when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may, on motion, require the pleading to be made definite and certain by amendment.

SEC. 129. The court, at any time before the final submission of the cause, on motion of the defendant, may

allow a counter claim or set-off, set up in the answer, to be withdrawn, and the same may become the subject of another action. On motion of either party, to be made at the time such counter claim or set-off, is withdrawn, an action on the same shall be docketed, and proceeded in as in like cases after process served; and the court shall direct the time and manner of pleading therein. If the action be not SO docketed, it may afterwards be commenced in the

ordinary way.

SEC. 130. In pleading a judgment or other determination of a court or officer of special jurisdiction, it shall be sufficient to state that such judgment or determination was duly given or made, and the jurisdiction of any such court or officer shall be presumed until the contrary appears.

Jurisdiction presumed.

Conditions performed.

count.

SEC. 131. In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing such performance. SEC. 132. In In an action, counter-claim or set-off, Copy of acfounded upon an account, promissory note, bill of exchange or other instrument, for the unconditional payment of money only, it shall be sufficient for the party to give a copy of the account or instrument, with all credits and indorsements thereon, and to state that there is due to him on such account or instrument, from the adverse party, a specified sum which he claims, with interest. When others than the makers of a promissory note or the acceptors of a bill of exchange, are parties in the actions, it shall be necessary to state also the kind of liability of the several parties, and the facts, as they may be, which fix their liability.

SEC. 133. In pleading a private statute, or a right Private statute derived therefrom, it shall be sufficient to refer to such statute

by its title, and the day of its passage, and the court there

upon shall take judicial notice thereof.

SEC. 134. In action for a libel or slander, it shall be Libel. sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff, and if the allegation be

Mitigating eircumstancos.

Real property.

Material allega tions taken as

true.

terial allegation.

denied, the plaintiff must prove on the trial, the facts showing that the defamatory matter was published or spoken of him.

SEC. 135. In the actions mentioned in the last section, the defendants may allege the truth of the matter charged as defamatory, and may prove the same, and any mitigating circumstances to reduce the amount of damages, or he may prove either.

SEC. 136. In an action for the recovery of real property, it shall be described with sufficient certainty to enable an officer holding an execution to identify it.

SEC. 137. Every material allegation of the petition not controverted by the answer, and every material allegation of new matter in the answer constituting a counter claim or setoff not controverted by the reply, shall, for the purpose of the action, be taken as true; but the allegation of new matter in the answer, not relating to a counter claim or set-off, or of new matter in reply, shall be deemed to be controverted by the adverse party, as upon a direct denial or avoidance, as the case may require. Allegations of value, or of amount of damage, shall not be considered as true, by failure to controvert them.

What is a ma- SEC. 138. A material allegation in a pleading is one essential to the claim or defense, which could not be stricken from the pleading without leaving it insufficient.

Not stated in pleading.

Tonder of money

Copy of pleading.

No variance material.

SEC. 139.. Neither presumptions of law, nor matters of which judical notice is taken, need be stated in the pleading. SEC. 140. When a tender of money is alleged in any pleading, it shall not be necessary to deposit the money in court when the pleading is filed, but it shall be sufficient if the money is deposited in court at the trial, or when ordered by the court.

SEC. 141. If an original pleading be lost or withheld by any person, the court may allow a copy thereof to be substituted.

Mistakes in Pleadings and Amendments.

SEC. 142. No variance between the allegations, in a pleading, and the proof, is to be deemed material, unless it have actually misled the adverse party, to his prejudice, in

maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be so proved to the satisfaction of the court, and it must also be shown in what respect he has been misled, and thereupon the court may order the pleading to be amended, upon such terms as may be just.

SEC. 143. When the variance is not material, as provided in the preceding section, the court may direct the fact to be found, according to the evidence, and may order an immediate amendment without cost.

Amendment.

SEC 141. When, however, the allegation of the claim Failure of proof or defense, to which the proof is directed, is improved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections, but a failure of proof.

leave.

SEC. 145. The plaintiff may amend his petition without Amend without leave, at any time before the answer is filed, without prejudice to the proceedings; but notice of such amendment shall be served upon the defendant or his attorney, and the defendant shall have the same time to answer or demur thereto as to the original petition.

SEC. 146. At any time within ten days after the demurrer is filed, the adverse party may amend, of course, on payment of costs since filing the defective pleading. Notice of the filing of an amended pleading shall be forthwith served upon the other party or his attorney, who shall have the same time thereafter to answer or reply thereto, as to an original pleading.

Notice of

amendment.

ruled.

SEC. 147. Upon a demurrer being over-ruled, the Demurrer overparty who demurred may answer or reply, if the court be satisfied that he has a meritorious claim or defense, and did not demur for delay.

SEC. 148. The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or

Court may

amend.

Disregard of defects.

Demurrer sustained.

Continuance.

"Name un

known."

Supplemental petition.

Consolidation.

conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense; and when any proceeding fails to conform, in any respect, to the provisions of this code, the court may permit the same to be made conformable thereto by amendment.

SEC. 149. The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not effect the substantial rights of the adverse party; and no judgment shall be reversed or effected by reason of such error or defect.

SEC. 150. If the demurrer be sustained, the adverse party may amend, if the defect can be remedied by way of amendment, with or without costs, as the court, in its discretion, shall direct.

SEC. 151. When either party shall amend any pleading or proceeding, and the court shall be satisfied, by affidavit or otherwise, that the adverse party could not be ready for trial in consequence thereof, a continuance may be granted to some day in term, or to another term of the court.

SEC. 152. When the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated, in any pleading or proceeding, by any name or description; and when his true name is discovered, the pleading may be amended accordingly. The plaintiff in such case must state in the verification of his petition that he could not ascertain the true name; and the summons must contain the words "real name unknown," and a copy thereof must be served personally upon the defendant.

SEC. 153. Either party may be allowed on notice, and on such terms, as to costs, the court may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer or reply.

SEC. 154. Whenever two or more actions are pending in the same court, which might have been joined, the defendant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated,