tributory negligence under this section. Lake Erie & W. R. Co. v. McFarren, 188 Ind. 113, 122 N. E. 330.

In view of this section plaintiff suing for personal injuries is not required to negative contributory negligence, complaint being sufficient in that respect unless the fact of contributory negligence affirmatively appears on the face of the pleading. Indianapolis & Cincinnati Tract. Co. v. Senour, App. 122 N. E. 772. See note to section 285.

In an action for negligent injury to property, it is error to give an instruction placing the burden of proof on defendant as to contributory negligence, since this section applies only to personal injury cases. Indianapolis & Cincinnati Traction Co. v. Sherry, 65 App. 1, 116 N. E. 594.

Under this section it is not necessary for a complaint to negative contributory negligence, unless the facts stated affirmatively disclose the defense of contributory negligence. Michigan City v. Werner, 186 Ind. 149, 114 N. E. 636.

Under this section contributory negligence of a person injured by a defective sidewalk is a matter of defense which plaintiff need not negative by allegations and proof. City of New Albany v. Stallings, App., 124 N. E. 701.

Under this section placing burden of contributory negligence on defendant, the presumption exists that deceased was in the exercise of due care. Reid v. Terre Haute, I. etc. Traction Co., App., 127 N. E. 857.

In an action in the courts of this state for damages under the Federal Employers' Liability Act it is not necessary to allege and prove want of contributory negligence. Baltimore & O. S. W. R. Co. v. Wheeler, App., 129 N. E. 40.

363. Reply, demurrer, paragraphs.

The statute requiring parties filing demurrers to pleadings to file memorandums stating the reasons for the demurrer applies to demurrers filed to replies. Pittsburgh etc. R. Co. v. Home Ins. Co., 183 Ind. 355, 108 N. E. 525.

364. Pleadings subscribed.

A pleading under oath denying the execution of a written instrument should be subscribed by the party or his attorney. Ashwell v. Miller, 54 App. 381, 103 N. E. 37.

The names of attorneys to pleadings may be typewritten. Boes v. Grand Rapids etc. R. Co., 59 App. 271, 108 N. E. 174, 109 N. E. 411.

365. Interrogatories to parties-Continuance.

If a party fails to answer interrogatories filed with pleadings as directed by the order of the court, the pleadings of such party may be stricken out and a judgment of default rendered. Houser v. Laughlin, 55 App. 563, 104 N. E. 309.

368. When instrument or copy must be filed.

As a general rule, when a pleading is based on a written instrument, the instrument, or a copy thereof, must be filed with the pleading and made a part thereof. Volker v. State ex rel., 177 Ind. 159, 97 N. E. 422; Vulcan Iron Works v. Electro Magnetic etc. Co., 54 App. 28, 99 N. E. 429, 100 N. E. 307.

If a pleading is founded upon a written warranty the instrument must be made a part of the pleading. La Grange v. Coyle, 50 App. 140, 98 N. E. 75.

When it appears that no substantial rights of a party were affected by the overruling of a demurrer to a pleading because the instrument on which it was based was not made a part of the pleading, the judgment will not be reversed because of such ruling. Volker v. State ex rel., 177 Ind. 159, 97 N. E. 422.

An exhibit that is filed with an original pleading can not be made a part of an amended pleading by a mere reference to such exhibit as having been filed with the original pleading. Vulcan Iron Works v. Electro Magnetic etc. Co., 54 App. 28, 99 N. E. 429, 100 N. E. 307.

If an action is brought to enjoin persons from interfering with the rights of the plaintiff that accrue under a contract, the contract is a proper exhibit to file with the complaint. Lake Erie etc. R. Co. v. Marott, 52 App. 332, 100 N. E. 865.

Assessments made against real estate on account of public improvements are the basis of actions to enforce the assessments, and should be made a part of complaints. Lehman v. City of Goshen, 178 Ind. 54, 98 N. E. 1, 710.

When a contractor sues a town to recover assessments for public improvements that have been paid to the town, the contract under which the work was done need not be made a part of the complaint. Town of Woodruff Place v. Gorman, 179 Ind. 1, 100 N. E. 296.

In an action to have a deed canceled, and to quiet title to land, the deed is not the foundation of the action and need not be made an exhibit to the complaint. Aldrich v. Amiss, 178 Ind. 303, 99 N. E. 419.

An exhibit filed with a pleading which is a monthly statement of account, showing charges, credits, and the balance due, is a sufficient account. Wills v. MooneyMueller Drug Co., 50 App. 193, 97 N. E. 449.

A complaint in an action by a materialman against sureties on a contractor's bond which incorporates the bond, is not demurrable for failure to exhibit a copy of the contract. Harris v. International Steel & Iron Const. Co., 62 App. 64, 112 N. E. 532.

Where the maker of a note defends on the ground of fraud consisting of written statements relative to the condition of the payee, a corporation of whom the maker bought stock, it is not necessary to set out such written statement in the answer or make them exhibits thereto. Millikan v. Security Trust Co., 187 Ind. 307, 118 N. E. 568.

370. Execution of instruments, proof, verified plea.

The statute requiring proof of the execution of writings when their execution is denied under oath, has no application to papers issued by the governors of states for the return of fugitives from justice. Worth v. Wheatley, 183 Ind. 598, 108 N. E. 958.

When written instruments are alleged in pleadings to have been executed, their execution will be admitted unless the same is denied under oath. Commercial Life Ins. Co. v. McGinnis, 50 App. 630, 97 N. E. 1018.

An answer under oath denying the execution of a writing should be subscribed by the party or his attorney. Ashwell v. Miller, 54 App. 381, 103 N. E. 37.

An answer filed by an administrator denying the execution of a writing need not be sworn to. Abelman v. Haehnel, 57 App. 15, 103 N. E. 869.

If a pleading alleges that a municipal ordinance had been enacted and was in force at a stated time, an ordinary answer of general denial puts such allegations in issue and requires the party making the same to prove them; and a plea of non est factum is not appropriate in such a case. Pittsburgh etc. R. Co. v. Macy, 59 App. 125, 107 N. E. 486.

This statute does not apply to an action for possession of land founded on an instrument not pleaded or introduced in evidence. Price v. Mitchell, App. 123 N. E. 817.

An unverified plea in abatement alleging that plaintiff is a minor and has sued without next friend, filed with pleas in bar, is subject to be stricken on motion,

and defendant can not complain where it was stricken on demurrer. Campbell v. Longford, App., 118 N. E. 571.

371. Dilatory pleas verified, abatement, issue.

Pleadings which show that the court has no jurisdiction over the subject-matter of the action, may be filed at any time during the pendency of the proceedings. Stockton v. Pancoast, 178 Ind. 203, 98 N. E. 122.

If an answer in abatement is not sworn to, it is demurrable. Miller v. Citizens' Building etc. Assn., 50 App. 132, 98 N. E. 70.

If there is no answer filed under oath denying the right of the plaintiff to sue, or of the capacity in which the defendant is sued, no proof need be made of such matters. Henry v. Epstein, 50 App. 660, 95 N. E. 275.

A judgment for costs on the sustaining of a demurrer to a plea in abatement is not an adjudication on the merits of the action. Thompson v. Mitchell, 54 App. 258, 100 N. E. 20.

If the judgment rendered on the issues formed on a plea in abatement is that the action shall not abate, and that the defendant shall plead over to the merits, there is no final judgment from which an appeal lies. Bluffton etc. Co. v. MooreMansfield etc. Co., 60 App. 567, 109 N. E. 406.

An instruction erroneously stating that the defendant master was a corporation was harmless under this section. Vandalia Coal Co. v. Moore, App. 121 N. E. 685.

--

In pleading the performance of conditions in a contract, such performance may be alleged either in general or specific terms. Kupfrain Park Co. v. Runcie, 49 App. 32, 96 N. E. 626; Federal Casualty Co. v. Taylor, 53 App. 565, 102 N. E. 146. When it is alleged in a pleading that a party has performed certain conditions, proof of the waiver of performance by the adverse party is equivalent to proof of performance. Union etc. League v. Sweeney, 184 Ind. 378, 111 N. E. 305.

Where a beneficiary of an insurance policy issued by a fraternal insurance company has pleaded performance of conditions precedent as to proofs of death, he may, under such plea, prove a waiver of conditions. Union Fraternal League v. Sweeney, 184 Ind. 378, 111 N. E. 305.

383. Presumption-Matters of judicial notice.

Where a complaint for possession of leased premises showed that the property is located in Indianapolis, the court will take judicial notice that it is located in Marion county. Little v. Hoffman, App., 119 N. E. 218.

385. Construction of pleadings, indefiniteness.

The rule fixed by statute for the construction of pleadings is more liberal than that of the common law; but inferences are not admitted which arise from speculation, conjecture or mere possibility, but only such as reasonably result from the facts stated. Domestic etc. Coal Co. v. De Armey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99.

Pleadings will not be held bad on demurrer because of general allegations when the necessary allegations can be gathered from all the averments. Wabash R. Co. v. Gretzinger, 182 Ind. 155, 104 N. E. 69.

If the allegations in pleadings are indefinite and uncertain, motions should be made to have them made more certain and definite. Wabash R. Co. v. Gretzinger, 182 Ind. 155, 104 N. E. 69; Yawger & Co. v. Joseph, 184 Ind. 228, 108 N. E. 774; Indianapolis Tel. Co. v. Sproul, 49 App. 613, 93 N. E. 463.

When it is evident that a more detailed statement of a transaction can not aid a party, a motion to make a pleading more definite and certain is properly overruled. Kinmore v. Cresse, 53 App. 693, 102 N. E. 403.

388. Paper lost or withheld-Copy used.

Under this section a copy of an office copy of a lost paragraph of the complaint is not admissible in the Supreme Court. Mackey v. Lafayette Loan & Trust Co., App., 121 N. E. 682.

-

An answer which is shown by answers to special interrogatories to be false may be stricken. Hollander v. Fletcher, 62 App. 149, 112 N. E. 847.

If the answers to special interrogatories do not clearly show that the plea of payment was false, it should not be stricken on motion. Hollander v. Fletcher, 62 App. 149, 112 N. E. 847.

In determining the sufficiency of an answer, matters well pleaded in the complaint and not controverted by the answer, are to be taken as true. Taylor v. Griner, 55 App. 617, 104 N. E. 607.

In an action for services rendered, the value of the services must be proved, where defendant appears and answers. Johnson v. Jones, 62 App. 4, 112 N. E.

830.

See note to section 350.

394. Relief-Extent thereof.

A suit was held to be for the sale of land and for reinvestment of the proceeds, and not for partition. Coquillard v. Coquillard, 62 App. 489, 113 N. E. 481.

399. No personal judgment.

When non-residents appear to an action by an attorney, personal judgments may be rendered against them. Pope v. Voight, 49 App. 176, 96 N. E. 984.

400. Variance, materiality, amendment.

If there is a variance between a pleading and the proof, and the pleading is amended, the jury need not be resworn when the issues or theory of the case are not changed by the amendment. Jackson Hill Coal Co. v. Bales, 183 Ind. 276, 108 N. E. 962.

When it appears that a party had full knowledge of matters that are inserted in a pleading by an amendment, he can not claim that he was misled by the amendment. Lesh v. Bailey, 49 App. 254, 95 N. E. 341.

Unless it appears that a party was misled or prejudiced by the action of the trial court in permitting pleadings to be amended on the trial, such action will not be reviewed on appeal. Hillyard v. Robbins, 53 App. 107, 101 N. E. 341; Hanlon v. Conrad-Kammerer Glue Co., 53 App. 504, 102 N. E. 48; Louisville etc. Tract. Co. v.

Lottich, 59 App. 426, 106 N. E. 903; Title Guaranty etc. Co. v. State ex rel., 61 App. 268, 109 N. E. 237, 111 N. E. 19.

Courts may permit pleadings to be amended after a verdict is returned to make the same correspond to the evidence given on the trial. Laramore v. Blumenthal, 58 App. 597, 108 N. E. 602.

Under this section and §§ 407, 700, the denial of a motion to make the complaint more specific is not ground for reversal, where defendants were fully advised before suit was instituted as to who conducted negotiations resulting in settlement in queston, and it appears that the agent in question reported such settlement to defendant and to the insurance company shortly after obtaining the release from plaintiff. Carter v. Richart, 65 App. 255, 114 N. E. 110.

The courts recognize the rule that plaintiff must recover on his allegations and proof or not at all. Its application does not preclude them from giving effect to this section and § 700, relative to variance. Hawkins v. Thompson, App. 122 N. E. 431.

A variance between the pleading and proof in regard to the name of a corporation to whose obligation defendant succeeded, was held immaterial where no prejudice is shown. Federal Life Ins. Co. v. Weedon, App., 118 N. E. 842.

The presumption prevails in the appellate court that an amended complaint was authorized where appellant made no showing of application for continuance or prejudice, under this section and § 405. C. H. Maloney & Co. v. Whitney, App. —, 124 N. E. 496.

Under this section making a variance immaterial unless prejudicial, variance between pleading for recovery on parol contract and proof of special written contracts, which did not mislead or prevent a fair trial is not reversible. Randolph v. King, App. 127 N. E. 20.

401. Variance immaterial-Action of court.

Where in a suit on a bond the verdict rendered was greater than the amount named in the bond, it will be presumed on appeal that the bond was amended so as to correspond to the proof. Aufderheide v. Heward, 65 App. 286, 117 N. E. 212.

403. Amendment, delay thereby, affidavit.

If an action is commenced against two persons as partners, and it is dismissed as to one and an amended complaint is filed against the other on a check issued by such defendant alone, a new action is commenced. Williams v. Lowe, 49 App. 606, 97 N. E. 809.

It is discretionary with the court to permit plaintiff to withdraw the submission of his case and file an additional paragraph, taxing the costs against plaintiff. Denney v. Reber, 63 App. 192, 114 N. E. 424.

In view of this section it is not error to overrule a motion to strike out an amendment of a complaint where the defendant fails to aver that such amendment or alteration was made after answer filed. Consumers Co. v. Ruble, App. -, 122 N. E. 607.

All amendments to pleadings after issues are closed must be by leave of court according to this section and rests in the court's discretion. Beckman v. Beckman's State Bank, App. 126 N. E. 486.

[Acts 1921, p. 277. In force May 31, 1921.]

405. Names, pleadings, correction, relief from judgment.-135. After trial and before final judgment, the court may, in its discretion and upon such terms as may be deemed proper for the furtherance of