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To charge an endorser, it is not necessary to aver a presentment and demand at the place specified in the note. Gay agt. Paine and Paine, 5 How. 107.

§ 163. [Sec. 140.] In pleading a private statute, or a Private right derived therefrom, it shall be sufficient to refer to how to be

pleaded. such statute, by its title and the day of its passage, and the court shall thereupon take judicial notice thereof. § 164. [Sec. 141.) In an action for libel or slander, it Libel and

slander, shall not be necessary to state in the complaint, any extrin- howo stated

plaint. sic 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 shall be sufficient to state generally, that the same was published or spoken concerning the plaintiff, and if such allegation be controverted, the plaintiff shall be bound to establish, on trial, that it was so published or spoken.

As to manner of pleading in actions for slander, see Pike agt. Van Wor. mer, 5 How. 171; Anon. 3, How. 406; Duel vs. Agan, 1 Code Rep. 134; Wood v. Gilchrist, id. 117.

§ 165. [Sec. 142.] In the actions mentioned in the last Answer in section, the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitiga- 1849, ting circumstances, to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances.

§ 166. In an action to recover the possession of property In actions distrained doing damage, an answer that the defendant or property person by whose command he acted, was lawfully pos

for damage sessed of the real property upon which the distress was forth the made, and that the property distrained was at the time doing damage thereon, shall be good, without setting forth the title to such real property.

§ 167. [Sec. 143.] The plaintiff may unite several causes What of action in the same complaint where they all arise out of: action may

1. Contract, express or implied; or
2. Injuries with or without force, to the person; or

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3. Injuries with or without force, to property; or
4. Injuries to character; or

5. Claims to recover real property, with or without damages, for withholding thereof, and the rents and profits of the same; or

6. Claims to recover personal property, with or without damages for the withholding thereof; or

7. Claims against a trustee, by virtue of a contract, or by operation of law.

But the causes of action, so united, must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated.

Where there are separate causes of action, all arising out of the same class, they must be separately stated, that is, a count for each cause of ac. tion; 2 Code Rep.,

145. A claim for money had and received cannot be joined with a claim founded on a refusal to deliver up promissory notes. Cahoon and others agt. The President, &c., of the Bank of Utica, 4 How. 423.

Claims for injuries to personal property, and claims for its possession, are different causes of action. Spaulding vs. Spaulding, 3 How. 297.

Where the claim is for return of the goods or their value, the judg. ment cannot be entered in the alternative. Aldrich v. Thiel, Code

Rep. 91. Allegation not denied,

§ 168. [Sec. 114.] Every material allegation of the complaint, not specifically controverted by the answer, as pre

scribed in section 149; and every material allegation of new Amended matter in the answer, not specifically controverted by the

reply, as prescribed in section 153, shall, for the purposes of the action, be taken as true. But the allegation of new matter in a reply, shall not in any respect conclude the defendant, who may on the trial countervail it by proofs, either in direct denial or by way of avoidance.

[See sections 149 and 153, and notes.]

By a material allegation is intended an allegation of fact. Barton vs. Sackett and others; 3 How. 358.

This section applicable to Justices' courts. Young vs. Moore, 2 Code Rep. 143.

deeined true.

Amended

CHAPTER VI.
Mistakes in Pleading, and Amendments.
SECTION 169. Material variances, how provided for.

170. Immaterial variances, how provided for.
171. What to be deemed a variance.
172. Amendments of course.
173. Amendments by the court.
174. Amendment, after demurrer.
175. Suing a party by a fictitious name, when allowed.
176. No error or defect to be regarded, unless it affect substantial

rights. 177. Supplemental complaint, answer and reply. $169. [Sec. 145.] No variance between the allegation in Material

variances, a pleading and the proof, shall be deemed material, unless it how provihave actually misled the adverse party, to his prejudice, in maintaining his action or defence, upon the merits. When-1849. ever it shall be alleged, that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as shall be just. $170. [Sec. 146.] Where the variance is not material, as Immatorial

variances, provided in the last section, the court may direct the fact to how provibe found according to the evidence, or may order an immediate amendment, without costs.

Variances not affecting the merits, will be disregarded on arguments at bar. And the court upon the trial of a cause, may order amendments, or may disregard the variance without amending. De Peyster v. Wheeler, 2 Sand. 719.

§ 171. [Sec. 147.] Where, however, the allegation of the What to be cause of action or defence to which the proof is directed is variancc. unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, within the last two sections, but a failure of proof.

$ 172. [Sec. 148.] Any pleading may be once amended by the Amendparty of course, without costs, and without prejudice to the

proceedings already had, at any time before the period for answer- Amended

1849, 1651. ing it expires, or, it can be so amended at any time within twenty

ded for.

deemed a

a

of course.

days after the service of the answer or demurrer to such plead-
ing unless it be made to appear to the court that it was done
for the purposes of delay and the plaintiff or defendant will
thereby lose the benefit of a circuit or term for which the cause is
or may be noticed, and if it appear to the court that such amend-
ment was made for such purpose the same may be stricken
out and such terms imposed as to the court may seem just.
In such case a copy of the amended pleading must be served
on the adverse party. After the decision of a demurrer, either
at a general or special term, the court may, in its discretion,
if it appear that the demurrer was interposed in good faith,
allow the party to plead over upon such terms as may be just.
If the demurrer be allowed for the cause mentioned in the
fifth sub-division of section one hundred and forty-four, the
court may, in its discretion, and upon such terms as may be
just, order the action to be divided into as many actions as
may
be necessary

to the proper determination of the causes of action therein mentioned.

If pleadings are served by mail, the party has forty days to amend. Cusson agt. Whalon, 5 How. 302; Washburn vs. Herrick, 4 How. 15; Seneca County Bank agt. Garlinghouse and others, id. 174; Morgan and others vs. Leland, 1 Code Rep. 123.

A plaintiff cannot amend his complaint by adding or striking out a party without leave of the court. Russell agt. Spear and Butler, 5 How. 142.

An amended answer served was a copy of the original answer, but with a demurrer previously served left off; held a reply not necessary. Howard agt. the Michigan Southern R. R. Co., 5 How. 206.

Where a party has served motion papers to set the first pleading aside, and an amended pleading is served curing the defect, the party amending must pay costs. Williams agt. Wilkinson. 5 How. 357; Hare vs. White, 3 How. 296.

$ 173. [Sec. 149.] The court may, before or after judgment, the couri. in furtherance of justice, and on such terms as may be proper, Amended amend any pleading or proceeding, 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, or by inserting other allegations material to the case, when the amendment does not

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change substantially thè claim or defence by conforming the pleading' or proceeding to the facts proved.

Court may amend mistakes or omissions of the clerk. Neele vs. Berry. hill, 4 How. 16; Luyster v. Sniffin, 3 How. 250.

But not an affidavit. Clickman v. Clickman, 1 Com. 612., S C., 3 How. 365.

Nor an undertaking without leave of the sureties. Langley vs. Warner, 1 Com. 606., S. C., 3 How. 363. Contra, Wilson, Receiver, &c., v. Allen and others, 3 How. 369.

Court may amend by adding or striking out a party. Brown and others vs. Babcock, administrator, and others. 3 How. 305; Dutcher v. Slack, id. 312; Davis and others agt. Schermerhorn, 5 How. 440.

In what cases amendments allowed in the pleadings. Dows and Cary vs. Green and Mather, 3 How. 377.

A justice of the peace may amend the date and return of a summons after it has been served. Arnold vs. Maltby, 4 Denio, 498.

Court may allow a complaint to be verified after it has been served. Bagg and others vs. Bickford and others, 4 How. 21.

The denial of a motion to amend is not an appropriate ground of exception. Roth vs. Schloss.,6 Barb, 308; White vs. Stevenson, 4 Denio, 193.

$ 174. The court muy likewise, in its discretion, and upon Amendsuch terms as may be just, allow an answer or reply to be demurrer. made or other act to be donc after the time limited by this act, or by an order enlarge such time; and may also, in its discre

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such terms as may be just, at any

time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect: and may supply an omission in any proceeding; and whenever any proceeding taken by a party fails to conform in any respect to the provisions of this code, the court may in like manner and upon like terms, permit an amendment of such proceeding, so as to make ii conformable thereto. $ 175. [Sec. 150.] When the plaintiff shall be ignorant Suing a

party by a of the name of a defendant, such defendant may be desig- fictious nated in any pleading or proceeding, by any name; and when al

lowed. when his true name shall be discovered, the pleading or proceeding may be amended accordingly.

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