Affidavit may resident of the county in which the action is brought, or if he be filled before pleading, etc. shall be absent from the county where the pleading is filed, affidavit may be made. an affidavit made before filing the pleading, stating the substance of the facts afterwards inserted in the pleading, shall be a sufficient verification. Such affidavit shall be filed with the pleading intended to be verified thereby. Before whom SEC. 108. The affidavit verifying pleadings may be made before any person before whom a deposition might be taken, and must be signed by the party making the same; and the officer before whom the same was taken shall certify that it was sworn to or affirmed before him, and signed in his presence. The certificate of such officer, signed officially by him, shall be evidence that the affidavit was duly made, that the name of the officer was written by himself, and that he was such officer. does not apply Verification SEC. 109. The verification of the pleading does not apply amount to the amount claimed, except in actions founded on contracts, express or implied, for the payment of money only. claimed except etc. Affidavit can be made by SEC. 110. When the affidavit is made by the agent or agent or attor attorney, it must set forth the reason why it is not made It can be made by the agent or ney only, etc. by the party himself. Pleading liber- Fictions abolished. Title not changed. attorney only: First, When the facts are within the knowledge of the agent or attorney. Second, When the plaintiff is an infant, or of 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. 111. In the construction of any pleading, for the purpose of determining its effect, its allegation shall be liberally construed, with a view to substantial justice between the parties. SEC. 112. All fictions in pleadings are abolished. SEC. 113. of its stages. SEC. 114. If the action, counter-claim, or set-off be fense be on ment.copy m`st Irrelevant matter stricken out more certain. founded on account, or on a note, bill or other written instru- If action or dement, as evidence of indebtedness, a copy thereof must be written instruattached to and filed with the pleading. If not so attached be filed. and filed, the reason thereof must be shown in the pleading. SEC. 115. If redundant, scandalous or irrelevant matter Pleadi'gs made 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. withdraw de may be docket case. SEC. 116. The court, at any time before the final sub- Defendant may mission of the cause, on motion of the defendant, may allow a fense, and it counter-claim or set-off, set up in the answer, to be with- ed as original drawn, 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. judgment. SEC. 117. In pleading a judgment or other determination In pleading a of a court or officer, of special jurisdiction, it shall be sufficient what sufficient. to state that such judgment or determination was duly given or made. If such allegation be controverted, the party pleading must establish, on the trial, the facts confering jurisdiction. contract, what SEC. 118. In pleading the performance of conditions pre- In pleading a cedent in a contract, it shall be sufficient to state that the suicient. party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading inust establish, on the trial, the facts showing such performance. SEC. 119. In an action, counter claim or set-off, founded in action, counupon an account, promissory note, bill of exchange or other set-off. founded instrument, for the unconditional payment of money only, it count, note or shall be sufficient for the party to give a copy of the account ment sufficient or instrument, with all credits and indorsements thereon, and etc. to state that there is due to him on such account or instrument, from the adverse party, a specified sum, which he ter-claim. OP upon an ac other instru to give a copy. Pleading a private statute. Libel or slander. 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. 120. In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title, and the day of its passage, and the court thereupon shall take judicial notice thereof. SEC. 121. In action for a libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff, and if the allegation be denied, the plaintiff must prove on trial, the facts showing that the defamatory matter was published or spoken of him. SEC. 122. In the actions mentioned in the last section. ant may allege 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. In libel or slan der, the defend the truth and prove it. Real property. allegations.not be taken as true. SEC. 123. 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. All material SEC. 124. Every material allegation of the petition not controverted to 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. Material allegation, pre SEC. 125. A material allegation in a pleading is one sumptions of essential to the claim or defense, which could not be stricken law. nor mat ters of which from the pleading without leaving it insufficient. judicial notice not be stated. is taken, need Neither presumptions of law nor matters of which judicial notice is taken, need be stated in the pleading. SEC. 126. If an original pleading be lost or withheld by any person, the court may allow a copy thereof to be substi- If pleading tuted. lost, copy may be substituted. a No variance be tween pleading it and proof ma terial unless. in etc. Mistakes in Pleadings and Amendments. SEC. 127. No variance between the allegations, in pleading, and the proof, is to be deemed material, unless have actually misled the adverse party, to his prejudice, 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 terins as may be just. rect the fact to SEC. 128. When the variance is not material, as provided court inay diin the preceding section, the court may direct the fact to be be found. found, according to the evidence, and may order an immedi ate amendment without cost. Case of vari SEC. 129. When, however, the allegation of the claim or what is not at defense, to which the proof is directed, is unproved, not in ance. 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. amend, etc. SEC. 130. The plaintiff may amend his petition without Plaintiff may 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. may amend. SEC. 131. At any time within ten days after the demur- Adverse party rer is filed, the adverse party may amend, of course, on pay- etc. ment 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. Demurrer overruled, reply. SEC. 132. Upon a demurrer being overruled, the party Ped, the party who demurred may answer or reply, if the court be satisfied may answer or that he has a meritorious claim or defense, and did not demur for delay. SEC. 133. The court may, before or after judgment, in permit amend therance of justice. The court may furtherance of justice, and on such terms as may be proper, ments in fur- 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 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 therto by amendment. Errors disregarded which substantial SEC. 134. The court, in every stage of action, must disdo not meet regard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect. rights. If dem urrer sustamed. ad Verse SEC. 135. If the demurrer be sustained, the adverse party 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. may amend. Ipon amend ment in certain ance must be granted. SEC. 136. When either party shall amend any pleading cases, cousing 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. True name unknown, other name tuted. SEC. 137. When the plaintiff shall be ignorant of the subst 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 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. Supplement al pleadings may be filled, Actions may be consolidated. SEC. 138. Either party may be allowed on notice, and on such terms as to costs, as 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. 139. Whenever two or more actions are pending in |