genuineness and due execution of such instrument are NOTE.-See Ely vs. Frisbie, 17 Cal., p. 250, cited in to rules by two 449. (§ 54.) But the execution of the instruments Exceptions mentioned in the two preceding sections, is not deemed prescribed admitted by a failure to deny the same under oath, if preceding the party desiring to controvert the same, is, upon demand, refused an inspection of the original. sections. CHAPTER VII. GENERAL RULES OF PLEADING. SECTION 452. Pleadings to be liberally construed. 453. Sham and irrelevant answers, etc., may be stricken out. 455. Description of real property in a pleading. 456. Judgments, how pleaded. 457. Conditions precedent, how to be pleaded. 458. Statute of Limitations, how pleaded. 459. Private statutes, how pleaded. 460. Libel and slander, how stated in complaint. Not neces sary to allege or prove special damages. 461. Answer in such cases. 462. Allegations not denied, when to be deemed true. When 463. A material allegation defined. 464. Supplemental complaint and answer. 465. Pleadings subsequent to complaint must be filed and served. to be construed. 452. (§ 70.) In the construction of a pleading, for Pleadings the purpose of determining its effect, its allegations liberally 'must be liberally construed, with a view to substantial justice between the parties. NOTE.-All pleading is taken most strongly against the pleader (Kashaw vs. Kashaw, 3 Cal., p. 322; Moore Sham and irrelevant answers, etc.. may vs. Besse, 30 Cal., p. 570; Green vs. Covillaud, 10 Cal., p. 317); but this rule does not apply where the pleader confesses his pleading is bad, and that it imperfectly and ambiguously expresses his meaning and intent, and therefore appeals to the mercy of the Court to be allowed to amend it in furtherance of justice, so as to present his case more clearly.-Nevada County and Sacramento County Canal Company vs. Kidd, 28 Cal., p. 684; see, also, Felch vs. Beaudry, 40 Cal., p. 440. Nor does the rule apply when it would make the pleading absurd, if it will bear any other construction.— Marshall vs. Shafter, 32 Cal., p. 176. In construing a pleading, an isolated sentence should not be taken separated from its context, and the effect of an independent averment given to it, unless from the whole pleading such appears to have been the plain intent.-Farish vs. Coon, 40 Cal., p. 33. By substantial justice is meant substantial legal justice, to be ascertained and determined by fixed rules and positive statutes, and not the abstract and varying notions of equity which may be entertained by each individual.-Stevens vs. Ross, 1 Cal., p. 98; see, also, Rowe vs. Chandler, 1 Cal., p. 167. 453. (S$ 50, 57.) Sham and irrelevant answers, and irrelevant and redundant matter inserted in a be stricken pleading, may be stricken out, upon such terms as the Court may, in its discretion, impose. out. NOTE.-1. SHAM ANSWERS.-See particularly Piercy vs. Sabin, 10 Cal., p. 27, commented on in Note No. 42 to Sec. 437, ante. A sham answer, said the Court, in Piercy vs. Sabin, 10 Cal., p. 27, was one good in form but false in fact, and not pleaded in good faith. The same definition, substantially, was given by the Court of Appeals of New York in the case of the People vs. McCumber, 18 N. Y., p. 315. It was suggested, however, that the power to strike out should be carefully exercised, and not extended beyond its just limits. "It is a power," says the Court, simply to inquire whether there is, in fact, any question to be tried, and if there is not, but the defense is a plain fiction, to strike out the fictitious defense. When a defendant, on a motion to strike out his defense as sham, supports it by an affidavit, stating specially its general grounds, he cannot, as a general rule, be deprived of a trial in the ordinary mode; a case for striking out does not exist." Whether the statute applies to any but affirmative defenses, it is unnecessary to determine; but there is no doubt that where affirmative matter is falsely pleaded 2. IMMATERIAL, REDUNDANT, OR IRRELEVANT 440. 3. FRIVOLOUS DEFENSE.-An answer by the payer of a note that the plaintiff is not the lawful owner or holder of the instrument sued on, when upon its face it runs to him, and which discloses no issuable fact in support of such denial, is simply frivolous.-Felch vs. Beaudry, 40 Cal., p. 440. See further sections of this Code, relating to complaint, answer, and demurrer. 454. (§ 56.) It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within five days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The Court, or a Judge thereof, or a County Judge, may order a further account, when the one delivered is too general, or is defective in any particular. NOTE. The objection that a bill of particulars is not properly verified by the oath of the party comes too late upon the trial. If the bill is not satisfactory to the defendant, either because it is defective in form or in q substance, or because it is not verified by the plaintiff, he should immediately return it, or move the Court for further or amended bill.—Dennison vs. Smith, 1 Cal., p. 437; see, also, Providence Tool Company vs. Prades 32 Cal., p. 634; Corner vs. Hutchinson, 17 Cal., p. 280. In an action upon a note, defendant, in general terms, without items, set up an account for work and labor, and for money paid, etc. Plaintiff asked for a copy of the account, which was furnished by defendant. Plaintiff gave notice that he would move the Court "for a further account of particulars," etc.; and on hearing, the Court ordered the same, which defendant supplied. On the trial plaintiff ordered his note, and rested. Defendant offered evidence of the account set up in the answer, to which plaintiff objected, on the ground that "defendant had not furnished an additional bill of particulars," and the Court ruled out the evidence. This was an erroneous ruling: first, because the order for a further account was defective, in not stating the particulars, in reference to which a further specification was required; and second, if the bill of particulars, delivered under the order of the Court, was not satisfactory, and plaintiff intended to object to any evidence upon the subject, he should have obtained, previous to the trial, an order excluding such evidence. Where a copy of the account sued on, or set forth in the answer, is called for under this section of the Code, the items of the account furnished must be stated with as much particularity as the nature of the case admits of; but the law does not require impossibilities; and if the party gives the items as definitely as he can, he does not forfeit his rights because of his inability to comply with a further demand for particulars.-Conner vs. Hutchinson, 17 Cal., p. 280. Where the complaint set forth the bill of sale in its precise words, it was held not to be defective in the description of the quantity of the goods sold. A party must be presumed to know what was intended by his own account.-Cochran vs. Goodman, 3 Cal., p. 244. If, in an action to recover a certain amount due for legal services, the complaint is in general terms, and the defendant asks for and receives a bill of particulars, he can make no objection to admitting evidence under it. Tompkins vs. Mahoney, 32 Cal., p. 231. of real a pleading. 455. ($58.) In an action for the recovery of real Description property, it must be described in the complaint with property in such certainty as to enable an officer, upon execution, to identify it. NOTE. This section formerly was as follows: "In an action for the recovery of real property, such property shall be described with its metes and bounds in the complaint." Foreclosure suits were not controlled by this section (Emeric vs. Tams, 6 Cal., p. 156); and under this section, as it then stood, it was held that a complaint describing land by a certain name was as good a description as one by metes and bounds, if it can be rendered sufficiently certain by evidence.-Castro vs. Gill, 5 Cal., p. 40; Stanley vs. Green, 12 Cal., p. 148; see, also, Doll vs. Fellets, 16 Cal., p. 432; Whitney vs. Buckman, 19 Cal., p. 300; Paul vs. Silver, 16 Cal., p. 73; Green vs. Palmer, 15 Cal., p. 411; Grady vs. Early, 18 Cal., p. 108; Carpentier vs. Grant, 21 Cal., p. 140; Moss vs. Shear, 30 Cal., p. 468. The language of the section, as it now stands, seems to express the general intent of the decisions of our Supreme Court. For description of real property, see Piercy vs. Crandall, 34 Cal., p. 344. ments, how 456. (§ 59.) In pleading a judgment or other Judg determination of a Court, officer, or Board, it is not pleaded. necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading must establish on the trial the facts conferring jurisdiction. NOTE.-1. GENERALLY.-In this case the certificate states that A. W. Bradford is Surrogate of the City and County of New York, and acting Clerk of the Surrogate's Court; that he has compared the transcript of the papers with the original records in the matter of the estate of William Young, and finds the same to be correct, and a true copy of all the proceedings; and that the certificate is in due form of law-in testimony whereof he sets his hand and affixes his seal of office. We do not see what more could be required to authenticate to us the records which the officer certifics. If the papers show upon their face the jurisdiction of the Court, it is not necessary that the complaint should aver this jurisdiction; and if it were, then the defect |