performed all the conditions on his part; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing such performance. [51 v. 57, ? 121 ; S. & C. 984.]

A general allegation of performance is sufficient, 1 H. 239; 27 O. S. 421; 33 O. S. 555, as in pleading a condition on a policy of insurance, it is sufficient to aver that "plaintiff has performed all the conditions on his part to be performed," 33 O. S. 555, and if the petition does not allege performance of such condition or a waiver of performance on the part of the insurer, it is bad on demurrer, 26 O. S. 348; so, in an action on a note, averments that payment "was duly demanded at maturity," and that it was duly protested for non-payment," and that "notice thereof was duly given," are sufficient averments of the performance of conditions precedent, 13 Wis. 277. It is sufficient to allege the performance of the condition in the language of the condition, 16 Gratt. 295; but an allegation that a contract "has been a valid and subsisting contract ever since the date of its execution, and is still a valid and subsisting contract, and binding on the said " is not sufficient, 14 O. S. 308. This mode of pleading is confined to conditions on contract, 52 Cal. 350, and includes as well express conditions precedent as constructive and implied conditions, 27 O. S. 424; 3 W. L. M. 628.

25092. Pleading private statutes. 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. [51 v. 57, 123; S. & C. 984.]

Courts can not take judicial notice of private statutes, unless specially pleaded, 33 0. S. 384; contra, 11 O. 276; 2 C. S. C. R. 178; and in pleading such statutes, they must at least be referred to by their title and the day of their passage, 33 O. S. 384. A city ordinance must be specially pleaded, 69 N. Y. 250; 4 Bush. 440; and a mere reference to it by number and date, it is held, is not sufficient, 9 Oreg. 363; but a city court may properly take judicial notice of a city ordinance, 11 Ia. 407. A foreign statute, 26 O. S. 131; 40 O. S. 342, or the statute of another state must be specially pleaded, 32 O.S. 163, or the charter of a foreign corporation, 22 O. S. 159. It is the safest course, when pleading a statute sanctioning a defense, to follow the words of the statute, 10 How. Pr. 515. Public domestic statutes need not be set out or even referred to in the pleading since the courts will take judicial notice of their existence and terms, 15 Wend. 111.

5093. Libel and slander. In an action for a libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff; if the allegation be denied, the plaintiff must prove the facts, showing that the defamatory matter was published or spoken of him; and in such action it shall not be necessary to set out any obscene word, but it shall be sufficient to state its substance. [51 v. 57, 124.]

Privilege of witness, 20 Bull 186; of counsel, Id. 189. Statements in pleadings privileged, Id. 193; see 4 C. C. R. 15.

2 5094. Id. Truth of matter and mitigating circumstances. In the actions mentioned in the preceding section, the defendant may allege and prove the truth of the matter charged as defamatory; and in every case he may prove any mitigating circumstances to reduce the amount of damages. [51 v. 57, ? 125; S. & C. 985.]

It may be shown, in mitigation, that the reputation of the plaintiff, a female, for chastity was bad, where the slanderous words charge a want of chastity, 32 O. S. 604; but specific acts of sexual intercourse by her can not be given in evidence for any purpose under an issue made by a general denial, Id. It may be shown in mitigation, that defendant, when the words were spoken, named his author, and that such third person had spoken the words, 7 O. (Pt. 1) 253; that plaintiff's wife, against whom the words were spoken imputing a want of chastity, and an unmarried man had lived together alone in one house, 6 O. S. 516; see 25060, libel and slander; 21 Bull 93, 292.

5095. Real property. How described. In an action for the recovery of real estate, the property shall be described with such certainty as will enable an officer holding an execution to identify it. [51 v. 57, ? 126; S. & C. 986.]

25096. Pleadings to be liberally construed. The allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties. [51 v. 57, 114; S. & C. 983.]

8 O. S. 215, 218; 10 O. S. 621; 14 O. S. 417, 422; 38 O. S. 314; 39 O. S. 57.

25097. Rule days for pleading. The answer or demurrer by the defendant shall be filed on or before the third Saturday, and the reply or demurrer by the plaintiff on or before the fifth Saturday, after the return day of the summons, or service by publication; and the answer or demurrer of a defendant to a cross-petition shall be filed on or before the third Saturday, and the reply or demurrer thereto on or before the fifth Saturday, after the cross-petition is filed. [51 v. 57, ? 103; S. & C. 982.]

In cases appealed from a justice of the peace, see 2 6598. In quo warranto, 6772; 11 Bull 294. It is too late, on error, to object to the filing of a demurrer to a petition after rule day, 44 O.S. 12; 15 Bull 103. The plaintiff against whom an answer demanding affirmative relief" is filed is "a defendant to a cross-petition," and this section gives him until the "third Saturday after the cross-petition is filed" to plead it. A judgment taken by

such defendant before such third Saturday, without the knowledge of the plaintiff, is obtained by "irregularity," and should be set aside by a proceeding under 23 5354-5365, 40 O. S. 344; see Id. 485.

25098. Rule day may be extended. The court, or a judge thereof in vacation, may, for good cause shown, extend the time for filing any pleading, upon such terms as are just. [51 v. 57, % 104; S. & C. 982.]

1 H. 290; 4 Bull 958, S. C. 8 Rec. 352; 15 Kas. 242; 6 Neb. 351. The defendant is not excused from filing his pleadings within the rule because the plaintiff has failed to comply with an order to give security for costs, 18 O. 240. It is discretionary with the court to receive or reject the statute of limitations after the rule day for pleading has expired and the party is in default, Id. Where the court gave leave to file a petition within sixty days, and, in default, ordered that the case stand dismissed, and a petition was filed two days after the expiration of the sixty days, the defendant, after answer, trial, and judgment, can not insist on the dismissal, 10 O. S. 621.

2 5099. Interrogatories may be annexed to a pleading. A party may annex to his pleading, other than a demurrer, interrogatories pertinent to the issue made in the pleadings, which interrogatories, if not demurred to, shall be plainly and fully answered under oath, by the party to whom they are propounded, or if such party is a corporation, by the president, secretary, or other officer thereof, as the party propounding requires. [70 v. 54, ? 105.]

Interrogatories authorized by this section must be confined to matters stated or referred to in the pleadings, 4 W. L. M. 144. If it is irregular to insert interrogatories in pleadings, the irregularity should be taken advantage of by motion, and is waived by demurrer, Id. Interrogatories which could have been attached to the petition will, on motion, be stricken out of the reply, Id. 146.

25100. When interrogatories to be answered. When annexed to the petition, the interrogatories shall be answered within the time limited for answer to the petition; when annexed to the answer, they shall be answered within the time limited for a reply; when annexed to the reply, they shall be answered within the time allowed for an answer; but further time may be allowed in all cases by the court, or a judge thereof in vacation. [70 v. 54, % 105.]

5101. How answers may be enforced. Answers to interrogatories may be enforced by non-suit, judgment by

default, or by attachment, as the justice of the case may require; and, on the trial, such answers, so far as they contain competent testimony on the issue or issues made, may be used by either party. [70 v. 54, 2105;] 44 O S.610. 5102. Pleadings to be subscribed and verified. Every pleading and motion must be subscribed by the party or his attorney, and every pleading of fact, except as provided in the next section, must be verified by the affidavit of the party, his agent or attorney; when a corporation is the party, the verification may be made by an officer thereof, its agent or attorney; and when the state, or any officer thereof in its behalf, is the party, the verification may be made by any person acquainted with the facts, the attorney prosecuting or defending the action, the prosecuting attorney, or the attorney-general. [52 v. 22, § 106; 70 v. 54, ? 105; S. & C. 982.]

See ? 213. The verification is no part of the pleading, 6 How. Pr. 200, and is not necessary to vest jurisdiction, 2 Neb. 136. Its omission may be supplied, 2 C. S. C. R. 30; 2 W. L. M. 548; contra, 1 W. L. M. 394; and if defective, it may be amended, 3 W. L. M. 604; 16 How. Pr. 129, without requiring the issuing of a new summons, Bates Pl. 253, citing 2 W. L. M. 312; contra, 2 C. S. C. R. 30; 3 W. L. M. 604; Id. 394; 2 Id. 548. The objection to such omission is by motion to strike from the files, 2 W. L. M. 548; Id. 602; 3 Id. 604; 11 Kas. 121; 6 Neb. 435. A defective verification is waived by pleading over or demurring, 3 W. L. M. 604; 62 Ind. 179; when no objection is made until after rendition of judgment, 8 Neb. 214; where a warrant of attorney to confess judgment authorized a release of all errors, 31 Ó. S. 435. The want of a verification can not be raised on the trial, 74 N. Y. 307; nor for the first time in a reviewing court, 29 Ark. 500. A failure to sign the affidavit of verification is not ground for dismissal of the action, but the practice is to file a motion to strike the petition from the files, 6 Neb. 435. A failure to subscribe the pleading is not ground for reversal of judgment, no advantage of the defect having been taken at the proper time, 26 O. S. 644. The signature, it is held, may be printed instead of written, 49 Cal. 413; and the court is not bound to try the question of the genuineness of the signature, 30 Cal. 192. The verification, it has been held, need not state the venue, 2 W. L. M. 588; see 43 Ia. 605; 18 Minn. 90 cf. 6 How. Pr. 394; 7 Neb. 146. The verification of an insufficient pleading will not aid it, 1 Minn. 241; nor prevent its being stricken out as sham, 13 Minn. 165.

25103. When verification not required. The verification mentioned in the preceding section shall not be required to the answer of a guardian, defending for an infant, or a person of unsound mind, or the attorney of a person imprisoned; nor in any case where the admission of the truth of a fact stated in the pleading might

subject the party to a criminal or penal prosecution. [51 v. 57, 107; S. & C. 982.]

It is not necessary in divorce or alimony cases, 5697; nor in petitions in error, 9 Neb. 502, unless they contain issuable facts, 35 O. S. 244; nor "where the admission of the truth of a fact stated in the pleading might subject the party to a criminal or penal prosecution," 31 Hun 563.

? 5104. When one of several parties may verify. If several parties are united in interest, and plead together, the affidavit may be made by one of them. [51 v. 57, ? 108; S. & C. 982.]

1 N. Y. Law Bull. 29. But all parties not united in interest should verify, 10 Abb. Pr. 66; 5 Bosw. 666; 14 How. Pr. 305. If the action is defended for the immediate benefit of one not a party to the record, and he is a party in interest, the pleading may be verified by him, 6 Abb. Pr. n. s. 147; and unless the wife is a mere nominal party, she should join with the husband in the verification, 12 How. Pr. 395.

25105. Sufficiency of affidavit. The affidavit shall be sufficient if it is stated therein that the affiant believes the facts stated in the pleading to be true. [51 v. 57, ? 109; S. & C. 982.]

11 O. S. 183, 188. A verification that affiant is informed and believes plaintiff is absent from the county is insufficient, 2 W. L. M. 602.

? 5106. Verification by non-resident. When the party pleading is a non-resident of the county in which the action is brought, or is absent from the county wherein the pleading is filed, an affidavit made before filing the pleading, and filed with it, stating the substance of the facts afterwards inserted in the pleading, shall be a sufficient verification [51 v. 57, 110; S. & C. 982.]

See 1 W. L. M. 199; 10 Kas. 112.

5107. Affidavit of verification to be signed and certified. The affidavit verifying a pleading may be made before any person before whom a deposition might be taken, and must be signed by the party who makes it; the officer before whom the same was taken shall certify that it was sworn to before him and signed in his presence; and the certificate of the 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. [51 v. 57, 2 111; S. & C. 983.]

"Subscribed and sworn to before me" a sufficient form, 2 D.