When defense is written instrument genuineness and due execution of such instrument are deemed admitted, unless the answer denying the same be verified. 448. (§ 54.) When the defense to an action is founded on founded on a written instrument, and a copy thereof is contained in the answer, or is annexed thereto, the genuineness and due execution of such instrument are deemed admitted, unless the plaintiff file with the Clerk, five days before the commencement of the term at which the action is to be tried, an affidavit denying the same. set out in answer, its execution admitted, unless denied by plaintiff under oath. Exceptions to rules two preceding sections. 449. (§ 54.) But the execution of the instruments prescribed mentioned in the two preceding sections, is not deemed admitted by a failure to deny the same under oath, if the party desiring to controvert the same, is, upon demand, refused an inspection of the original. CHAPTER VII. GENERAL RULES OF PLEADING. SECTION 452. Pleadings to be liberally construed. 453. Sham and irrelevant answers, etc., may be stricken out. 454. How to state an account in pleadings. 455. Description of real property in a pleading. 456. Judgments, how pleaded. 457. Conditions precedent, how to be pleaded. 458. Statute of Limitations, how pleaded. 459. Private statutes, how pleaded. 460. Libel and slander, how stated in complaint. Not neces sary to allege or prove special damages. 461. Answer in such cases. 462. Allegations not denied, when to be deemed true. When to be deemed controverted. 463. A material allegation defined. 464. Supplemental complaint and answer. 465. Pleadings subsequent to complaint must be filed and served. to be construed. 452. (§ 70.) In the construction of a pleading, for Pleadings the purpose of determining its effect, its allegations liberally must be liberally construed, with a view to substantial justice between the parties. 453. (§§ 50, 57.) Sham and irrelevant answers, and irrelevant and redundant matter inserted in pleading, may be stricken out, upon such terms as the Court may, in its discretion, impose. Sham and a answers, 454. (§ 56.) It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within five days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The Court, or a Judge thereof, or a County Judge, may order a further account, when the one delivered is too general, or is defective in any particular. 455. (§ 58.) In an action for the recovery of real property, it must be described in the complaint with such certainty as to enable an officer, upon execution, to identify it. irrelevant etc., may be stricken out. How to account in state an pleadings. Description property in of real a pleading. ments, how 456. (§ 59.) In pleading a judgment or other Judgdetermination of a Court, officer, or Board, it is not pleaded. necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading must establish on the trial the facts conferring jurisdiction. 457. (§ 60.) In pleading the performance of conditions precedent in a contract, it is not necessary to state the facts showing such performance, but it may be stated generally 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. Conditions precedent, how to be pleaded. Statute of Limitations, how pleaded. Private statutes, how pleaded. Libel and slander, how stated in 458. In pleading the Statute of Limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of Section(giving the number of the section and subdivision thereof, if it is so divided, relied upon) of THE CODE OF CIVIL PROCEDURE; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred. 459. (§ 61.) In pleading a private statute, or a right derived therefrom, it is sufficient to refer to such statute by its title and the day of its passage. 460. (§ 62.) In an action for libel or slander it is not necessary to state in the complaint any extrinsic complaint. facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it is sufficient to state, generally, that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff must establish on the trial that it was so published or spoken. Not necessary to allege or prove special damages. Answer in such cases. Allegations not denied, when to be deemed true. When to be deemed controverted. 461. (§ 63.) In the actions mentioned in the last section the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circum stances. 462. (§ 65.) Every material allegation of the complaint, not controverted by the answer, must, for the purposes of the action, be taken as true; the statement of any new matter in the answer, in avoidance or constituting a defense or counter claim, must, on the trial, be deemed controverted by the opposite party. allegation 463. (§ 66.) A material allegation in a pleading A material is one essential to the claim or defense, and which defined. could not be stricken from the pleading without leaving it insufficient. mental and answer 464. (§ 67.) The plaintiff and defendant, respect- Suppleively, may be allowed, on motion, to make a supple- complaint mental complaint or answer, alleging facts material to the case occurring after the former complaint or answer. 465. All pleadings subsequent to the complaint must be filed with the Clerk and served upon the adverse party or his attorney. Pleadings to complaint must be filed and served. subsequent CHAPTER VIII. VARIANCE-MISTAKES IN PLEADINGS AND AMENDMENTS. SECTION 469. Material variance, how provided for. 470. Immaterial variance, how provided for. 471. What not to be deemed a variance. 472. Amendments of course, and effect of demurrer. 474. Suing a party by a fictitious name, when allowed. 475. No error or defect to be regarded unless it affects sub stantial rights. variance, how pro vided for. 469. (§ 579.) No variance between the allegation Material 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 proved to the satisfaction of the Court, and thereupon the Court may order the pleading to be amended, upon such terms as may be just. Immaterial variance, how provided for. What not to be deemed 470. Where the variance is not material, as provided in the last section, the Court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs. 471. Where, however, the allegation of the claim. a variance. or defense to which the proof is directed, is unproved, 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. Amendments of effect of demurrer. 472. (§ 67.) Any pleading may be amended once course, and by the party of course, and without costs, at any time before answer or demurrer filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, who may have ten days thereafter in which to answer or demur to the amended pleading. A demurrer is not waived by filing an answer at the same time; and when the demurrer to a complaint is overruled and there is no answer filed, the Court must allow an answer to be filed. If a demurrer to the answer is overruled, the facts alleged in the answer must be considered as denied, to the extent mentioned in Section 462. Amendments by 473. (§ 68.) The Court may, in furtherance of the Court. justice, and on such terms as may be proper, amend any pleading or proceedings, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The Court may likewise, upon affidavit showing good cause therefor, after notice to the adverse ments, etc. party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars; and may, upon like terms, allow an answer to be Enlarging time to plead and relieving from judg |