Conditions precedent, how to be pleaded. should have been noticed by demurrer, not by motion to exclude, or objection to the admissibility of the transcript. Here it seems the Surrogate is Judge and Clerk of the Court. This being so, it was only necessary that the certificate should state the main facts which are made necessary by the Acts of Congress to the authentication of the records of a Court which has both Judge and Clerk.-Low vs. Burroughs, 12 Cal., p. 188. In an action on a note, the answer alleged the discharge in insolvency of defendant. Plaintiff demurred to the answer, on the ground that it did not allege that the note was described, set forth, and included in defendant's schedule. It was decided that under this section of the Code it was sufficient to allege in the answer that a judgment had been duly rendered, discharging defendant from the demand sued on; and that whether the demand was sufficiently described was matter of evidence, to be determined on the trial, by inspection of the record.-Hanscom vs. Tower, 17 Cal., p. 521. 2. JUDGMENTS OF JUSTICES' COURTS.-A person asserting a right under the judgment of a Justice must affirmatively show every fact necessary to confer such jurisdiction.-Swain & Marsh vs. Chase, 12 Cal., p. 283. 3. JUDGMENT OF A PROBATE COURT.- Where a judgment of the Probate Court is pleaded it is unnecessary to allege the facts conferring jurisdiction, but the judgment may be stated to have been duly rendered. Beans vs. Emanuelli, 36 Cal., p. 117. Board" 4. JUDGMENT OF A BOARD.-The words ". or are an addition to the old section.-See Himmelman vs. Danos, 35 Cal., p. 448. It was held that a complaint to recover an assessment on a lot in San Francisco for street improvements should show, either by general or special averment, a compliance by the Board of Supervisors with all the steps prescribed by statute to confer jurisdiction upon the Board.-Himmelman vs. Danos, 35 Cal., p. 448. 457. (§ 60.) In pleading the performance of conditions precedent in a contract, it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly 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. NOTE. If the action is on an executory contract, and each party has something to perform before the other can be placed entirely in default, the party seeking to enforce it against the other must aver in his complaint a performance or tender of performance, or a readiness to perform, on his part.-Barron vs. Frink, 30 Cal., p. 486; see Mickle vs. Sanchez, 1 Cal., p. 200. An averment that the plaintiff had fully performed, on his part, all conditions of the contract, is an allegation of performance sufficiently explicit under this section.— Cal. Steam Nav. Co. vs. Wright, 6 Cal., p. 258. A general statement of the performance of conditions precedent, is sufficient in cases of contract, but, in all other cases, the facts showing a performance must be specially pleaded. If an Act of the Legislature prescribes conditions precedent on the performance of which title to land may be recovered, in pleading such title a performance of all the acts required under the law must be averred.-People vs. Jackson, 24 Cal., p. 630; see, also, generally, Bensley vs. Atwill, 12 Cal., p. 231; Gibbons vs. Scott, 15 Cal., p. 284; Himmelman vs. Danos, 35 Cal., p. 448. The performance of all conditions which are precedent to the liability of the defendant, whether founded upon a contract or a statute, must be alleged in some form, either general or special. In actions upon contracts a general allegation of performance of conditions precedent is under this section (457) of the Code sufficient. But a general allegation of performance of conditions prescribed by a statute has not been so declared, and is not, therefore, sufficient. Himmelman vs. Danos, 35 Cal., p. 448; citing the cases of Dye vs. Dye, 11 Cal., p. 163; People vs. Jackson, 24 Cal., p. 680. 458. In pleading the Statute of Limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of Section (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of THE CODE OF CIVIL PROCEDURE; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred. NOTE.-The Commissioners say in their report that they introduced this section believing that a pleading 51-VOL. I. Statute of tions, how Limita pleaded. Private statutes how pleaded. Libel and slander, under it will be more concise, and at the same time will afford to the opposite party all the information necessary to enable him to meet the defense made. The utility of the section is manifest. For instance, if the action be for the recovery of the possession of a mining claim, instead of the lengthy averments now required, the plea will be as follows: "Defendant avers that the cause of action is barred by the provisions of Sec. 320 of the Code of Civil Procedure." 459. (8 61.) In pleading a private statute, or a right derived therefrom, it is sufficient to refer to such statute by its title and the day of its passage. NOTE.-See Dye vs. Dye, 11 Cal., p. 163. 460. (§ 62.) In an action for libel or slander it is not necessary to state in the complaint any extrinsic complaint. facts for the purpose of showing the application to the how stated in Not necessary to allege or prove special damages. Answer in Such cas 08. plaintiff of the defamatory matter out of which the cause of action arose; but it is sufficient to state, generally, that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff must establish on the trial that it was so published or spoken. NOTE.-Where the words complained of were not in themselves libelous, it should be averred what the defendant intended and understood them to mean, and what they were understood to mean by those to whom they were published. And where the complaint only averred a libelous intent and meaning on defendant's part in publishing the words, yet if there was no averment that they were so understood by those to whom they were published, the complaint is defective and demurrable.-Maynard vs. F. F. Ins. Co., 34 Cal., p. 57, citing many authorities, and among them the following: Goodrich vs. Wolcott, 3 Cowen, p. 239; Andrews vs. Woodmansee, 15 Wend., p. 234; Gibson vs. Williams, 4 Wend., p. 320; Dexter vs. Taber, 12 Johns., p. 239; Peak vs. Oldman, 1 Cowen, p. 275. See, also, generally: Bradley vs. Gardner, 10 Cal., p. 371; Thrall vs. Smiley, 9 Cal., p. 529; Butler vs. Howes, 7 Cal., p. 87. 461. (§ 63.) In the actions mentioned in the last section the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circum stances. NOTE.-The answer must aver the truth of the defamatory matter charged, if justification is sought. Facts which only tend to establish the truth of such matter are not sufficient allegations. Without an averment of its truth, the fact detailed can only avail in mitigation of damages.-Thrall vs. Smiley, 9 Cal., p. 529. The defendant may prove the plaintiff's words immediately after defendant uttered the slanderous words.-Bradley vs. Gardner, 10 Cal., p. 371.. Allega denied, deemed tions not when to be true. When to be deemed 462. (§ 65.) Every material allegation of the complaint, not controverted by the answer, must, for the purposes of the action, be taken as true; the statement of any new matter in the answer, in avoidance or constituting a defense or counter claim, must, on verted. the trial, be deemed controverted by the opposite party. NOTE.-Allegations of matters of evidence are not admitted, however, though no denial is made by the answer.-Racouillat vs. Rene, 32 Cal., p. 450. If an ultimate fact is admitted in the record, the Court will not consider probative facts for the purpose of establishing, modifying, or overcoming it. Mulford vs. Estudillo, 32 Cal., p. 131. contro allegation 463. (§ 66.) A material allegation in a pleading A material is one essential to the claim or defense, and which defined. could not be stricken from the pleading without leaving it insufficient. NOTE.-See Sec. 426, ante; Green vs. Palmer, 15 Cal., p. 413; Whitwell vs. Thomas, 9 Cal., p. 499. In an action on a contract, an averment in the complaint that the contract was payable in a specific kind of money is a material allegation.-Wallace vs. Eldridge, 27 Cal., p. 498. mental 464. (§ 67.) The plaintiff and defendant, respect- Suppleively, may be allowed, on motion, to make a supple- complaint mental complaint or answer, alleging facts material and answer to the case occurring after the former complaint or answer. NOTE. If the defendant demurs to the complaint, the plaintiff must, on motion, be allowed leave to amend his complaint before a decision on the demurrer is rendered.-Lord vs. Hopkins, 30 Cal., p. 76. 465. All pleadings subsequent to the complaint must be filed with the Clerk and served upon the adverse party or his attorney. Material CHAPTER VIII. VARIANCE-MISTAKES IN PLEADINGS AND AMENDMENTS. SECTION 469. Material variance, how provided for. 470. Immaterial variance, how provided for. 471. What not to be deemed a variance. 472. Amendments of course, and effect of demurrer. and relieving from judgments, etc. 474. Suing a party by a fictitious name, when allowed. 469. (§ 579.) 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 thereupon the Court may order the pleading to be amended, upon such terms as may be just. NOTE.-The latter part of this section has been added by the Commissioners. It accords with the construction placed by the Courts upon the section as it originally stood.-Catlin vs. Gunter, 10 How. Pr. R., p. 321; Cathcal vs. Talmadge, 1 E. D. Smith, p. 575; and see, also, Began vs. O'Reilly, 32 Cal., p. 11; Plate vs. Vega, 31 Cal., p. 383. |