in actions prosecuted by the attorney-general in behalf of the state the pleadings need not, in any case, be verified. Gen. Laws, 4995.

Form of Verification by Party to the Action.

SEC. 64. The following is a form of verification by party to the action:

State of

county of

.....

being duly sworn, says: That he is the plaintiff [or, “defendant"] in the above entitled action; that he has read [or, “has heard read,” as the case may be] the foregoing complaint [or, "answer"] and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and as to those matters that he believes it to be true.

Subscribed and sworn to before

me, this.... day of

.....

A.D. 18...

Justice of the peace.

Form of Verification by Other Person than Party to the Action.

SEC. 65. The following is a form of verification by other person than party to the action:

State of

county of

being duly sworn on behalf of the plaintiff [or, "defendant"] in the above entitled action, says: That he has read [or, "has heard read,” as the case may be] the foregoing complaint [or, answer"] and knows the contents thereof, and that the same is true of his own knowledge, except as to the matters which are therein stated on information or belief, and as to those matters that he believes it to be true.

.....

That the said plaintiff [or, "defendant"] is absent from the county of where his attorney resides [or, state the cause of the party's inability to verify the pleading] and the facts are within the knowledge of said affiant who is the agent [or, "attorney"] of the said plaintiff [or, "defendant"], and therefore he makes this affidavit.

......

Subscribed and sworn to, before me this .... day of A.D. 18...

.....

Justice of the peace,

What Justice Shall do With the Pleadings.

SEC. 66. When the pleadings are oral, the substance of them shall be entered by the justice in his docket; when in writing, they shall be filed in his office and a reference to them made in the docket. Gen. Laws, 5503.

Amendments of Pleadings.

SEC. 67. The pleadings may be amended at any time before the trial, to supply a deficiency or omission, when by such amendment substantial justice will be promoted. If the amendment be made after the issue, and it be made to appear to the satisfaction of the court by oath, that an adjournment is necessary to the adverse party in consesequence of such amendment, an adjournment shall be granted. The court may also, in its discretion, require as a condition of an amendment, the payment of costs to the adverse party, to be fixed by the court, not exceeding twenty dollars; but such payment shall not be required unless an adjournment is made necessary by the amendment; nor shall an amendment be allowed after a witness is sworn on the trial, when an adjournment thereby will be made necessary. Gen. Laws, 5511. Amendments should be liberally allowed by inferior courts in advancement of justice, and to secure a fair and speedy trial on the merits. 14 Cal. 201.

SEC. 68. Where a justice overrules a defense, on the ground that it is not well pleaded, it is his duty to order the pleading to be amended, and having permitted the defendant to present his defense, he should allow him to perfect his pleading for that purpose. 13 Barb. 533.

SEC. 69. He has the right to allow the complaint to be amended in all respects, so that the case may be determined on its substantial merits; and this, whether the defect be in the statement of jurisdictional or any other facts. The greatest liberality and indulgence should be extended in all such applications. 11 Cal. 280.

SEC. 70. Great latitude is given to the courts by our statute, in amending and altering pleadings, etc.; and they are required to administer substantial justice between the parties. 2 Cal. 195.

SEC. 71. It is error for a justice to dismiss a complaint, on motion, upon the ground that it does not contain facts. enough to constitute a cause of action, without also giving the right to amend. 17 Barb. (N. Y.)141.

Evidence Under the Pleadings.

SEC. 72. A variance between the proof on the trial and the allegations in a pleading shall be disregarded as immaterial, unless the court be satisfied that the adverse party has been misled to his prejudice thereby. Pr. Act, 579, Sec. 96.

SEC. 73. The want of jurisdiction may be pleaded or given in evidence under the general issue. 4 Blackf. 299.

SEC. 74. The rule that where a party seeks to recover on a special agreement, and fails in his proof, he may still recover for work under it, if, supposing there had been no special agreement, he could have recovered, applies to pleadings in justices' courts. 2 E. D. Smith (N. Y.) 374.

SEC. 75. The date at the head of an account does not preclude the plaintiff from proving the time when the various items accrued. It does not pre-suppose the entire indebtedness to have accrued prior to that time. Such a rigid construction of the accounts of illiterate men would tend to prevent justice. 15 Mo. 442:

SEC. 76. A reply not being admissible in the justice's court, the allegation of new matter in an answer in that court, must in all cases necessarily be deemed controverted by the plaintiff; and it is competent for him to countervail it by evidence either in direct denial or of new matter by way of avoidance. Therefore, where in an action before a justice, the defendant pleads infancy, the plaintiff may, without replying or amending at the trial, show a new promise by the defendant after he became of age. 22 Barb. (N. Y.) 150.

CHAPTER LXXVIII.

RELEASE.

SECTION 1. A covenant not to sue, operates as a release only in order to avoid circuity of action. If the covenant be broken, the strict right of the covenantee is to recover on the covenant, and as the recovery must be the same in both suits, the doctrine of release is resorted to; but this

doctrine being technical cannot be extended in its construction, and where the debt is joint and the covenant not to sue is made to a portion only of the debtors, it will not be held as a release to either, but the party who holds the covenant must be left to his action upon it. 4 Cal. 64.

SEC. 2. A release of one joint debtor is a release of the others, but it must be a technical release under seal. 6 Cal. 186. A receipt given to one joint debtor on a note for a part payment, coupled with the words "which is in full on his part on the within note and the said A B is hereby discharged from all obligation in the same," is not such a release as will discharge the others. 6 Cal. 183.

Jurisdiction of Person given by Summons.

SECTION 1. The judgments of courts are not binding unless jurisdiction be first had of the person of the party to be affected by them. This jurisdiction is given in this state by a form of notice prescribed by statute. The statute in such cases must be substantially pursued. 11 Cal. 378. The mere recital in a transcript from a justice's docket that defendant was duly served, is not sufficient. Before the transcript can be admitted to establish the rights of one holding under the judgment of a justice, the facts in regard to the service of summons must appear. McDonald vs. Prescott and Clark, 2 Nev. 109.

Contents of Summons.

SEC. 2. The summons shall be addressed to the defendant by name, or if his name be unknown, by a fictitious

name, and shall summon him to appear before the justice at his office, naming its township or city, and at a time specified therein, to answer the complaint of the plaintiff, for a cause of action therein described in general terms sufficient to apprise the defendant of the nature of the claim against him; and in action for money or damages, shall state the amount for which the plaintiff will take judgment, if the defendant fail to appear and answer. It shall be subscribed by the justice before whom it is returnable. Gen. Laws, 5471.

SEC. 3. A justice having no jurisdiction of the cause by virtue of the summons issued, may, by the defendant's appearance and plea, acquire jurisdiction of the person (1 E. D. Smith, N. Y. 615), for the only object of a summons is to bring a party into court, and if that object be attained by the appearance and pleading of a party, there can be no injury to him. 7 Cal. 587; 21 Cal. 55.

SEC. 4. The cause of action must be stated in the summons with sufficient certainty to apprise the defendant of the legal character of the action. And the proof must support the summons. A summons to answer to an action "on a note of hand," is not supported by a writing obligatory. 1 Pike, 108.

SEC. 5. The plaintiff cannot recover a sum exceeding the amount indorsed on the summons. 4 Gilm. 64.

SEC. 6. The signature of a justice to a summons is sufficient if it give his surname in full, and his christian name by initials. 4 Zabr. (N. J.) 33, 838. The summons does not require a seal. 7 Iredell, 400.

Time in which Summons to Require Defendant to Appear.

SEC. 7. The time in which the summons shall require the defendant to appear and answer the complaint shall be as follows:

1st. If the plaintiff and defendant reside within the township when [where] the action is brought, within ten days after the service thereof.

2d. If the plaintiff and defendant reside out of the township but within the county where the action is brought, within five days after the service thereof.