where the action or defence is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney; or where all the material allegations of the pleading are within the personal knowledge of the agent or the attorney; in either case the verification may be made by the agent of or the attorney for the party.

From Co. Proc., § 157, am'd.

§ 526. Form of affidavit of verification.

The affidavit of verification must be to the effect, that the pleading is true to the knowledge of the deponent except as to the matters therein stated to be alleged on information aud belief, and that as to those matters he believes it to be true. Where it is made by a person, other than the party, he must set forth. in the affidavit, the grounds of his belief, as to all matters not stated upon his knowledge, and the reason why it is not made by the party.

Id., § 157.

§ 527. When verification may be confined to a counterclaim.

Where the complaint is not verified, and the answer sets up a counterclaim, and also a defence by way of denial or avoidance, the affidavit of verification may be made to refer exclusively to the counterclaim. In that case, the last three sections are applicable to the affidavit and the counterclaim, as if the latter was a separate pleading.

§ 528. Remedy for defective verification, or want of verification.

The remedy for a defective verification of a pleading is to treat the same as an unverified pleading. Where the copy of a pleading is served without a copy of a sufficient verification. in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice, with due diligence, to the attorney of the adverse party, that he elects so to do.

§ 529. When defendant not excused from verifying answer to charge of fraud.

A defendant is not excused from verifying his answer to a complaint, charging him with having confessed or suffered a judgment, or executed a conveyance, assignment, or other instrument, or transferred or delivered money, or personal property, with intent to hinder, delay, or defraud his creditors; or with being a party or privy to such a transaction by another person. with like intent towards the creditors of that person; or with any fraud whatever, affecting a right or the property of another. Substance of 2 R. S. 174, § 41 (2 Edm. 181), and L. 1833, ch. 14, § 1 (4 Edm. 531).

§ 530. [Am'd, 1877.] Private statute; how pleaded.

In pleading a private statute, or a right derived therefrom. it is sufficient to designate the statute by its chapter, year of passage, and title, or in some other manner with convenient certainty, without setting forth any of the contents thereof. Co. Proc., § 163, am'd.

§ 531. [Am'd, 1904.] Account, how pleaded. ticulars.

Bill of par

It is not necessary for a party to set forth, in a pleading, the items of an account therein alleged; but in that case, he must deliver to the adverse party, within ten days after a written demand thereof, a copy of the account, which, if the pleading is verified, must be verified by his affidavit, to the effect, that he believes it to be true; or, if the facts are within the personal knowledge of the agent or attorney for the party, or the party is not within the county where the attorney resides, or capable of making the affidavit, by the affidavit of the agent or attorney. If he fails so to do, he is precluded from giving evidence of the account. The court, or a judge authorized to make an order in the action, may direct the party to deliver a further account, where the one delivered is defective. Upon application in any case, the court, or a judge authorized to make an order in the action, may, upon notice, direct a bill of the particulars of the claim of either party to be delivered to the adverse party, and in case of default the court shall preclude him from giving evidence of the part or parts of his affirmative allegation of which particulars have not been delivered.

Co. Proc., 158, am'd; L. 1904, ch. 500. In effect April 29, 1904. § 532. Judgment; how pleaded.

In pleading a judgment, or other determination, of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction; but the judgment or determination may be stated to have been duly given or made. If that allegation is controverted, the party pleading must, on the trial, establish the facts conferring jurisdiction.

Id., § 161.

§ 533. Conditions precedent; how pleaded.

In pleading the performance of a condition precedent in a contract, it is not necessary to state the facts constituting performance; but the party may state, generally, that he, or the person whom he represents, duly performed all the conditions on his part. If that allegation is controverted, he must, on the trial, establish performance.

Id., part of § 162.

§ 534. Instrument for payment of money; how pleaded. Where a cause of action, defence, or counterclaim, is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and state that there is due to him thereon, from the adverse party, a specified sum, which he claims. Such an allegation is equivalent to setting forth the instrument, according to its legal effect. Id., part of § 162, am'd. See § 1917.

§ 535. Pleadings in libel and slander.

It is not necessary, in an action for libel or slander, to state, in the complaint, any extrinsic fact, for the purpose of showing the application to the plaintiff, of the defamatory matter; but the plaintiff may state, generally, that it was published or spoken concerning him; and, if that allegation is controverted, the plaintiff must establish it on the trial. In such an action, the defendant may prove mitigating circumstances, notwithstanding that he has pleaded or attempted to prove a justification.

Id., § 164.

§ 536. [Am'd, 1877.] Pleading mitigating circumstances in action for a wrong.

In an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, the defendant may prove, at the trial, facts, not amounting to a total defence, tending to mitigate or otherwise reduce the plaintiff's damages, if they are set forth in the answer, either with or without one or more defences to the entire cause of action. A defendant, in default for want of an answer, may, upon a reference or inquiry to ascertain the amount of the plaintiff's damages, prove facts of that description.

§ 537. [Am'd, 1879.] Frivolous pleadings; how disposed of. If a demurrer, answer or reply is frivolous, the party prejudiced thereby, upon a previous notice to the adverse party, of not less than five days, may apply to the court or to a judge of the court for judgment thereupon, and judgment may be given accordingly. If the application is denied, an appeal cannot be taken from the determination, and the denial of the application does not prejudice any of the subsequent proceedings of either party. Costs, as upon a motion, may be awarded upon an application pursuant to this section.

Co. Proc., § 247.

§ 538. Sham defences to be stricken out.

A sham answer or a sham defence may be stricken out by the court, upon motion, and upon such terms as the court deems just.

Id., § 152, am'd.

§ 539. Material variances; how provided for.

A variance, between an allegation in a pleading and the proof, is not material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defence, upon the merits. If a party insists that he has been misled, that fact, and the particulars in which he has been misled, must be proved to the satisfaction of the court. Thereupon the court may, in its discretion, order the pleading to be amended, upon such terms as it deems just.

Id., § 169.

§ 510. Immaterial variances; how provided for.

Where the variance is not material, as prescribed 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.

Id., § 170.

§ 541. What to be deemed a failure of proof.

Where, however, the allegation to which the proof is directed, is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, within the last two sections, but a failure of proof.

Id, § 171.

{342. [Am'd, 1897.] Amendments of course.

"Within twenty days after a pleading, or the answer, demurrer or reply thereto, is served, or at any time before the period for

answering it expires, the pleading may be once amended by the party, of course, without costs and without prejudice to the proceedings already had. But if it is made to appear to the court that the pleading was amended for the purpose of delay, and that the adverse party will thereby lose the benefit of a term, for which the cause is or may be noticed, the amended pleading may be stricken out, or the pleading may be restored to its original form, and such terms imposed as the court deems just.

Co. Proc., part of § 172, remodelled; L. 1897, ch. 470. In effect Sept. 1, 1897.

§ 543. Amended pleading to be served; answer thereto. Where a pleading is amended, as prescribed in the last section, a copy thereof must be served upon the attorney for the adverse party. A failure to demur to, or answer the amended pleading, within twenty days thereafter, has the same effect as a like failure to demur to, or answer the original pleading. Id., part of § 172. and of § 146.

§ 544. [Am'd, 1877.] Supplemental pleadings.

Upon the application of either party, the court may, and, in a proper case, must, upon such terms as are just, permit him to make a supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made; including the judgment or decree of a competent court, rendered after the commencement of the action, determining the matters in controversy, or a part thereof. The party may apply for leave to make a supplemental pleading, either in addition to, or in place of, the former pleading. In the former event, if the application is granted, a provisional remedy, or other proceeding already taken in the action, is not affected by the supplemental pleading; but the right of the adverse party to have it vacated or set aside, depends upon the cases presented by the original and supplemental pleadings.

Id., 177, am'd.

§ 545. [Am'd, 1877.] Motion to strike out irrelevant, etc., matter.

Irrelevant, redundant, or scandalous matter, contained in a pleading, may be stricken out, upon the motion of a person aggrieved thereby. Where scandalous matter is thus stricken out, the attorney whose name is subscribed to the pleading may be directed to pay the costs of the motion, and his failure to pay them may be punished as a contempt of the court. Id., § 160, am'd. See Rule 22.

§ 546. [Am'd, 1877.] Indefinite or uncertain allegations. Where one or more denials or allegations, contained in a pleading, are so indefinite or uncertain that the precise meaning or application thereof is not apparent, the court may require the pleading to be made definite and certain, by amendment. Id., part of § 160, am'd. See Rule 22.

§ 547. [Repealed in 1877.]

127

CHAPTER VII.

General Provisional Remedies in an Action.

TITLE I. - Arrest, Pending the Action, and Proceedings Thereupon.
TITLE II.

Injunction.

Attachment of Property.

Other Provisional Remedies; General and Miscellaneous Provisions.

TITLE I.

Arrest, pending the action, and proceedings thereupon. Article 1. Cases where an order of arrest may be granted, and persons liable to arrest.

2. Granting, executing, and vacating or modifying the order of arrest. 3. Discharging the defendant upon bail or deposit; justification of the bail and disposition of the deposit.

4. Charging and discharging bail.

ARTICLE FIRST.*

Cases where an order of arrest may be granted, and persons liable to arrest.

Sec. 548. No person to be arrested in civil proceedings, without a statutory provision. Ne exeat abolished.

549. When the right to arrest depends upon the nature of the action.
550. When the right to arrest depends partly upon extrinsic facts.
551. Order, when and where granted; when of right, and when dis-
cretionary.

552. Foreign judgment not to affect right to arrest.

553. Women not to be arrested, except, etc.

554. Idiot, lunatic, or infant under fourteen, if arrested, to be dis charged.

555. Person sued in a representative capacity, not to be arrested.

§ 548. [Am'd, 1877.] No person to be arrested in civil proceedings, without a statutory provision. Ne exeat abolished.

A person shall not be arrested in a civil action or special proceeding, except as prescribed by statute. The writ of ne exeat is hereby abolished.

Substitute for Co. Proc., § 178.

§ 549. [Am'd, 1877 and 1886.] When the right to arrest depends upon the nature of the action.

A defendant may be arrested in an action, as prescribed in this title, where the action is brought for either of the following

causes:

1. To recover a fine or penalty.

2. To recover damages for a personal injury; an injury to property, including the wrongful taking, detention or conversion of personal property; breach of a promise to marry; misconduct or neglect in office, or in a professional employment; fraud; or deceit, or to recover a chattel where it is alleged in the complaint that the chattel or a part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof; or to recover for

See Laws 1886, ch. 672.