4666 (129). In an action, counter-claim, or set-off, founded 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 endorsements 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 action, 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.

This provision is not mandatory; any proper statement of cause of action is good. 15, 120 (17 N. W. 359). The last clause would seem to require a copy of the endorsement to be in the petition. 11, 456 (9 N. W., 652). It must be alleged that sum claimed is due on note in controversy. 12, 279 (11 N. W., 306). Petition must allege that there is something due on the instrument sued -on. 10, 269 (4 N. W., 981). When negotiable instrument is lost after it becomes due, a recovery may be had thereon in a court of law. 14, 512 (16 N. W., 839). Petition held sufficient. 11, 237 (9 N. W., 91).

4667 (130). 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 shall thereupon take judicial notice thereof.

4668 (131). In an action for 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 the trial the facts, showing that the defamatory matter was published or spoken of him.

Words held libelous and actionable per se. 11, 280 (9 N. W., 43).

4669 (132). In the actions mentioned in the last section the defendant 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.

Where the issue is that of malice plaintiff has the opening and closing. 15, 505 (19 N. W., 706). 4670 (133). 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.

4671 (134). Every material allegation of the petition not controverted by the answer, and every material allegation of new matter in the answer not controverted by the reply, shall, for the purpose of the action, be taken as true; but the allegation of new matter in the reply shall be deemed controverted by the adverse party, as upon a direct denial or avoidance. Allegations of value or of amount of damage shall not be considered as true by failure to controvert them.

Amended 1873; G. S., 545. A denial must be direct and unambiguous. 4, 523. The burden of proving new matter, such as payment set up in the reply, is on the plaintiff. 10, 7 (4 N. W., 361). New matter set up by defendant in replevin taken as true. 29, 656 (46 N. W., 47). Burden of proving new matter alleged in the answer is on defendant. 11, 442 (9 N. W., 569). Where a cause is submitted on the pleadings, only such matters of defense in the answer as are admitted, or not denied in the reply, are to be considered as established. 14, 246 (15 N. W., 212); 11, 397 (9 N. W., 475).

4672 (135). 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.

Failure to plead a material fact raises a presumption that it does not exist. 27, 404 (43 N. W., 178).

4673 (136). Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in the pleading.

4674 (137). If an original pleading be lost, or withheld by any person, the court may allow a copy thereof to be substituted.

See note to section 1, ante, citing 11, 469.

CHAPTER VII.-MISTAKES IN PLEADINGS, AND AMENDMENTS.

4675 (138). No variance between the allegation 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 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.

Description in insurance policy locating property in N. shows it to be, not material. 27, 540-1 (43 N. W., 340). fatal. 12, 99 (10 N. W., 577).

W., instead of S. E. quarter, as proof
Variances in copy of bond, held, not

4676 (139). Whenever the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, and may order an immediate amendment without costs.

Pleadings may be amended to conform to facts proven. 7, 58.

4677 (140). When, however, the allegation of the claim 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.

4678 (141). The plaintiff may amend his petition without leave, at any time before the answer is filed, without prejudice to the proceeding; 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.

4679 (142). At any time within ten days after a demurrer is filed, the adverse party may amend, of course, on payment of costs since filing the defective pleading. Notice of filing an amended pleading shall be forth with served upon the other party, who shall have the same time thereafter to answer or reply thereto, as to an original pleading.

4680 (143). Upon a demurrer being overruled, the party 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.

4681 (144). The court may, either 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 by correcting a mistake in the name of a party, or a mistake in any other respect, or by asserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. And whenever any proceeding taken by a party 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.

Original section allowed amendment only "before judgment;" amended 1875, p. 35. Has reference solely to amendment of pleadings. 14, 429 (16 N. W., 434). This section confers upon the court an almost unlimited power of amendment "in furtherance of justice." 12, 393 (10 N. W., 705). Where the ends of justice seem to demand it, leave will be given in the supreme court to amend a petition so as to fully state the cause of action. 14, 490 (16 N. W., 911). Amendment may be made after trial. 8, 318. Error to refuse amendment in furtherance of justice. 9,5 (1 N. W., 980). Permitting amendments to be filed rests in discretion of court, and may be conditioned on taxation of costs. 29, 432 (45 N. W., 471). A petition in ejectment may be amended to one in equity; so long as the identity of the cause of action is preserved, the form of the action is not material. 19, 33 (26 N. W., 614). Supersedeas bond is a proceeding and can be amended. 19, 220 (27 N. W., 109). Appeal bond may be amended. 3, 122. Stay bond is amendable. 17, 201′ (22 N. W., 455). Defective verification may be amended. 2, 136; 3, 136. Indiscretion of court. 3, 95. Affidavit in replevin may be amended. 13, 205 (13 N. W., 176). Officer may

amend his return to conform to facts though ten years have elapsed. 20, 350 (30 N. W., 274). Allowed of petition which in describing land makes whole amount five acres instead of two hundred and forty as intended. 27, 872 (44 N. W., 42). In suit against partnership it is learned during the trial that transaction was with an individual of the firm, amendment allowed. 6, 495. A pleading can be used as evidence, when an amended pleading is filed if it is at variance with the original. 19, 107 (26 N. W., 621). See 6, 506; 20, 548 (31 N. W., 75); 29, 498 (46 N. W., 39). 4682 (145). The court in every stage of an action must disregard 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.

Description in replevin affidavit as seven head of horses," etc., and in amended petition as "three mares," "three horses," and " one colt," no variance. 27, 569 (43 N. W., 357). Cited 13, 32 (12 N. W., 811); 21, 610 (33 N. W., 241).

4683 (146). 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.'

4684 (147). 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.

Counter-affidavit not proper. Affidavit that prisoner was informed, etc., not good. 6, 338. 4685 (148). 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 and description, and when his true name is discovered, the pleading or proceeding may be amended accordingly. The plaintiff in such case must state, in the verification of his petition, that he could not discover the true name, and the summons must contain the words "real name unknown," and a copy thereof must be served personally upon the defendant.

4686 (149). 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.

Cited, 21, 313 (31 N. W., 918); 21, 610 (33 N. W., 241); 24, 655 (39 N. W., 835).

4687 (150). 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, and if no such cause be shown, the said several actions shall be consolidated. Not error if plaintiff fails to consolidate his causes of action. 9, 112 (2 N. W., 365). 4188 (151). The order for consolididation may be made by the court or by a judge thereof in vacation.

TITLE VIII.-PROVISIONAL REMEDIES.

CHAPTER I.-ARREST AND BAIL.

Chapter I, secs. 152 to 180, repealed 1887, p. 654.

CHAPTER II.-REPLEVIN OF PROPERTY.

4689 (181). The plaintiff in an action to recover the possession of specific personal property, may, at the commencement of the suit, or any time before answer, claim the immediate delivery of such property as provided in this chapter.

Gist of action is the unlawful detention. 6, 272. Question is right of property at commencement of action. 27, 247 (42 N. W., 1034). Replevin will lie to recover possession of buildings erected on a lot by party claiming title thereto, who, by judicial determination, has been evicted therefrom, if not affixed to the soil, though another did afterwards affix them to the soil. 1, 438. Replevin will not lie to oust a tenant from the occupancy of a building. 14, 409 (16 N.

W., 832). Demand not necessary. 2, 253. Where no bill of particulars was filed in justice's court, no question of departure can be raised in district court on appeal. 14, 48 (14 N. W., 656); 27, 222-3 (42 N. W., 1028); 29, 565 (45 N. W., 927).

4690 (182). An order for the delivery of personal property to the plaintiff shall be made by the clerk of the court in which the action is brought, when there shall be filed in his office an affidavit of the plaintiff, his agent, or attorney showing: First-A description of the property claimed. Second-That the plaintiff is the owner of the property, or has a special ownership or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the same. Third-That the property is wrongfully detained by the defendant. Fourth ―That it was not taken in execution on any order or judgment against said plaintiff'; or for the payment of any fine, tax, or amercement assessed against him, or by virtue of an order of delivery issued under this chapter, or any other mesne or final process issued against him; *Provided, That such affidavit may omit the first and last clause of this subdivision, and in lieu thereof show that the property was taken in execution on a judgment or order, other than an order of delivery in replevin, and that the same is exempt from such execution or attachment under the laws of this state; And provided further, That the provisions of this act shall extend to and apply as well to proceedings in replevin had before justices of the peace.

66

27,

Amended and all after* added 1877, p. 9. Affidavit is a prerequisite in all cases. 17, 488 (23 N. W.,344). Affidavit in replevin may be amended. 13, 205 (13 N. W., 176). And see 13, 279 (13 N. W., 403). Even after judgment. 7, 53. Petition verified on mere belief will not take the place of affidavit; but court may permit filing of amended affidavit relating back to commencement of action. 29, 224 (45 N. W., 622). Description in affidavit as 'seven head of horses," etc., and in amended petition as "three mares," "three horses," and "one colt," no variance. 569-70 (43 N. W., 357). Plaintiff must have such interest as shall entitle him to the immediate possession of the property. 7, 27. As to special ownership. 20, 298 (30 N. W., 64). Not neccessary that petition should contain all averments of section. Sufficient if petitioner states that he is the owner of and entitled to the immediate possession and that said goods are unlawfully detained. 21, 157 (31 N. W., 491). Answer that defendant does not unlawfully detain the said goods and chattels of the said plaintiff puts in issue right of property and right of possession. 7, 293.

4691 (183). The order for the delivery of the property to the plaintiff shall be addressed and delivered to the sheriff. It shall state the names of the parties, the court in which the action is brought, and command the sheriff to take the property, describing it, and deliver it to the plaintiff, and to make return of the order on a day to be named therein.

4692 (184). The return day for the order of delivery, when issued at the commencement of the suit, shall be the same as that of the summons; when issued afterwards, it shall be twenty days after it issued.

When writ is returnable on Sunday or holiday, is not void but returnable the following day. 23, 735 (37 N. W., 637).

4693 (185). The sheriff shall execute the order by taking the property therein mentioned. He shall also deliver a copy of the order to the person charged with the unlawful detention of the property, or leave such copy at his usual place of residence,

Failure to deliver copy of order to defendant cannot be taken advantage of after judgment. 6, 472. Writ of replevin cannot be served on Sunday. 16, 653 (21 N. W., 406).

4694 (186). The sheriff, or other officer, shall not deliver to the plaintiff, his agent or attorney, the property so taken, until there has been executed, by one or more sufficient sureties of the plaintiff, a written undertaking to the defendant in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him, *and return the property to the defendant, in case judgment for a re

turn of such property is rendered against him.* The undertaking shall be returned with the order.

*to* inserted 1873; G. S., p. 553. Surety bound with principal. 7, 294. One who has given bond and received property cannot refuse to prosecute action and enjoin others from doing so. 24, 578 (39 N. W., 600). Bond in another action properly admitted in evidence. 27, 222 (42 N. W., 1028). Where mortgagee replevies goods from sheriff, who holds them under an order of attachment against the mortgagor, the sheriff's measure of damages is the amount called for by his writ, when value of property equals or exceeds that sum. 12, 374 (11 N. W., 462). Judgment for mortgagee in replevin by mortgagor, not a bar to action by latter for accounting. 29, 455 (45 N. W., 617). Measure of damages for wrongful detention of stock of goods by sheriff not merely net income of store at time; all other elements may be considered. 27, 94 (42 N. W., 906). Claim for damages may be increased by amendment on appeal to district court in proper case. 12, 392 (10 N. W., 705). Not necessary that the court shall find the value of property when possession sued for. 21, 711 (33 N. W., 254); 22, 89 (34 N. W., 76). Verdict should respond to the issue made by the pleadings. 9, 30 (1 N. W., 975). See 25, 438 (41 N. W., 284).

4695 (187). For the purpose of fixing the amount of the undertaking, the value of the property taken shall be ascertained by the oath of two or more responsible persons, whom the sheriff or other officer shall swear truly to assess the value thereof.

Appraisal not admissible as evidence. 27, 223 (42 N. W., 1028).

4696 (188). If the undertaking, required by section one hundred and eightysix, be not given within twenty-four hours from the taking of the property under said order, the sheriff or other officer shall return the property to the defendant. And if the sheriff or other officer deliver any property so taken to the plaintiff, his agent or attorney, or keep the same from the defendant, without taking such security within the time aforesaid, or if he takes insufficient security, he shall be liable to the defendant in damages.

4697 (189). The defendant may, within twenty-four hours from the time the undertaking referred to in the preceding section is given by the plaintiff, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fails to do so, he must be deemed to have waived all objections to them. When the defend

ant excepts, the sureties must justify upon notice as bail on arrest. The sheriff or other officer shall be responsible for the sufficiency of the sureties, until the objection to them is waived as above provided or until they justify. The property shall be delivered to the plaintiff when the undertaking required by section one hundred and eighty-six has been given.

4698 (190). [Proceedings in action-Jury-Findings.]-If the property has been delivered to the plaintiff, and judgment be rendered against him on demurrer, or if he otherwise fail to prosecute his action to final judgment, the court shall, on application of the defendant or his attorney, impanel a jury to inquire into the right of property and right of possession of the defendant to the property taken. If the jury shall be satisfied that said property was the property of the defendant at the commencement of the action, or if they shall find that the defendant was entitled to the possession only of the same at such time, then, and in either case, they shall assess such damages for the defendant as are right and proper; for which, with costs of suit, the court shall render judgment for the defendant.

Omission of word possession from verdict not fatal under facts stated. 24, 385 (38 N. W., 863). Cannot be changed into a suit in equity. 20, 299 (30 N. W., 64). A general denial and claim of a return of the property is a sufficient answer. 17, 520 (23 N. W., 519). Judgment should be in the alternative for return of property, or, in case a return cannot be had, for its value, unless it is shown by the record that a return could not be had. Attorneys cannot make an agree ment contrary to the facts that will bind the sureties on replevin bond. 13, 510 (14 N. W., 476).

4699 (191). In all cases, when the property has been delivered to the plaintiff, where the jury shall find upon issue joined for the defendant, they shall also find whether the defendant had the right of property, or the right of possession only, at