Action-Continued.

of trespass, pleadings, ?? 207, 208.
for waste, 211.

on written instruments, 213.

Admission, of truth of matter pleaded by demurrer, 41,
118.

to what extent demurrer operates as, 42, 118.

by demurrer remaining upon record of court, 42.
of allegations in complaint by failure to deny in
answer, 64.

conclusiveness of, by failure to deny, 64.

when failure to reply does not amount to, 103.

of truth of allegations in answer by demurrer,

118.

of terms of foreign law by demurrer, 118.

in pleading, how construed, 280.

in pleading, how availed of, 280.
in answer, effect of, 280.

in one of several answers, construction, 280.
on both sides cannot be contradicted, 280.
amendment by retraction of, 280.

particular instances of, construction, 280.
Adultery. See DIVORCE.

counter-claim of, in action for divorce, 92.
how alleged in pleading, 141.

allegation as to place of commission, 141.

allegation as to time of, 141.

union of cause of action for, with one for limited
divorce, 141.

how pleaded in recrimination, 142.

is a defense to action for limited divorce, 142.

Adverse possession, in ejectment cannot be shown under
general denial, 69.

when question of, may be raised without being
pleaded, 69.

Agent, liability of principal on contract of, 122.

implied authority to act for principal, 122.
allegation of employment of, 122.

action against, by third person for fraud, 122.
Aggravation. See DAMAGES.

matter in, not admitted by failure to deny, 76.
matter of, in action for breach of promise, 129.
when plea of justification is of wrong, 164.
Agreed case, pleadings dispensed with in, 257.
Allegata et probata. See VARIANCE.

Allegation, material, defined, 2 64.

failure to deny, is an admission of, 64.

if immaterial, failure to deny does not admit, 64.
of time and place, 13.

of quantity or value, 14.

of fraud, 20, 67.

of demand, 21.

of knowledge or scienter, 24.

of title or ownership, 25.

Ambiguity, when complaint not faulty for, 15.

allegations in alternative, amount to, 54.

motion the usual remedy in case of, 54, 246.
reached by demurrer in California, 54.
waiver of objection on ground of, 269.
rule of construction in case of, 274.

Amendments, liberally allowed under Code pleading,
225.

general provisions as to, 225.

object of, in general, 225.

terms imposed on allowance of, 225, 241.

right to, as of course, 226.

what amounts to, 226.

waiver of right of, as of course, 226.

extent of right to, as of course, 227.

tests by which to determine what are, 227.
to answers, what allowable, 227, 231, 235.
instances of, allowed as of course, 228.

effect of, as of course, 229.

remedy of party aggrieved, when made in bad faith,

230.

striking out, on motion, 230.

allowance of, on motion before trial, 231.

allowance of, after demurrer, 232.

allowance of, at the trial, 233.

conforming pleading to facts proved, 233.

allowance of, after trial, 234.

after remand of cause, 235.

allowance of, on appeal, 235.

when considered as made, 236.

defects cured by verdict or finding, 236.
instances of, allowed, generally, 237.
by whom made, 238.

power of referee to allow, 238, 242.
exercise of discretion in allowing, 239.
effect of, 242.

Amendments - Continued.

when not allowed, ? 242.

waiver of error in refusing to allow, 242.
practice on allowing or refusing, 242.

Another action pending, when objection taken by de-
murrer, 49.

when remedy is by answer, 49.

in court of United States, or sister State, 49.
instances in which demurrer will not lie, 49.
proceeding construed as action, 49.

defense of, must be set up in answer, 67.

what answer must allege setting up as defense. 67.

Answer. See DEFENSE.

when defendant's remedy is by, 53.
definition and nature of, 58.
tenders an issue of fact, 58.
when defense must be made by, 58.
what to contain, in general, 59.
should be entitled, 59.

when to contain prayer for relief, 59.
nature of defense to be set forth in, 59.
two classes of defense allowed in, 59.
general or specific denials in, 60.
requisites of denials in, 61.

denying knowledge or information, 62
what may or may not be denied in, 63.
cffect of omission to deny in, 64.
general denial, what shown under, 65.
new matter in defense, 66.

particular defenses, how set up in, 67.

setting up statute of frauds in, 68.
statute of limitations in, 69.

pleading statutes in, generally, 70.

setting up consideration in, 71.

justification as a defense in, 72.

leave and license, how pleaded in, 73.

contributory negligence in. 74.

denial of damages in, 75.

of matter in aggravation or mitigation, 76.
partial defenses in, 77.

joinder of defenses in, 78.

right of several defendants to join in, 79.
each defense in, must be complete, 80.
designation of separate defenses in, 80.
to be subscribed by party or attorney. 81.

Answer-Continued.

when required to be verified, ? 81.
when verification of, may be omitted, 81.
who may verify, 82.

verification of, how made, 82.

supplemental, what is, 83.

supplemental, allowance of, discretionary, 83.
supplemental, in what cases allowed, 83.
supplemental, what set up in, 83.

may contain new matter constituting counter-
claim, 84.

sufficiency of, raised by demurrer, 110.
indefiniteness of, remedied by motion, 110.
form and sufficiency of demurrer to, 111.

sufficiency of complaint considered on demurrer to,

112.

containing one good defense is not demurrable,
113.

if bad, is good enough for bad complaint, 113.
sufficiency of counter-claim set up in, 114.
instances of demurrer sustained to, 115.
when demurrer to, not sustained, 116.
effect of demurrer to, 117.

waiver of demurrer to, 117.

how far demurrer admits facts pleaded in, 118.
Assault and battery, joinder of, with other action for
injury to person, 37.

evidence as to damages in action for, 76, 18, n. 11
counter-claim in action for, 91, n. 2.

Assessmonts. See TAXES.

on subscriptions, when enforcible, 203.

presumed authority of corporation to make, 203.
complaint by corporation in action to recover, 203.
in what case stockholder cannot resist, 203, n. 14.
action to recover back tax paid under, when void,
206.

complaint to remove, as cloud on title, 206.

Assignment, of note, allegation of, in complaint, 123.
of breach of bond in complaint, 128.

of judgment, averment of, in complaint by assignee,

160.

of statutory cause of demurrer, 111.
Argumentativonoss, disallowed in pleading, 11.
remedy against, in pleading, 246, 247.
in a denial is seldom good, 61.

Award, must be specially pleaded, ? 67.
substance of, must be fully set forth, 67.
Bailmont. See COMMON CARRIER, PLEDGE.

Bankruptcy, defense of, must be specially pleaded, 66, 67.
how set forth in pleading, 67.

supplemental answer setting up aischarge in, 83
Bills and notes, imports a consideration, 123.

in action on, consideration need not be averred, 123.
description of, in complaint sufficient, 123.
allegation of non-payment material, 123.
averment of execution and copy of note, 123.
sufficient averment of breach, 123.

averment of delivery, 123.

averment of ownership, 123.

setting forth copy of, in complaint, 123.

averment of presentment, refusal, and notice, 123.
averment of protest not equivalent to allegation of
notice, 123.

complaint by assignee of, against maker, 123.
suit by first indorser of, against second, 123.
action by heirs at law upon, 123.

averment as to acceptance, 123.
action upon destroyed note, 123.
payee must be alleged, 123.

allegation as to indorsement and assignment, 123.
variance between description and copy of, 123.
allegation in action on, by corporation, 123.
answer in action on, no consideration, 124.

answer in action on, failure of consideration, 124.
answer in action on, fraud, misrepresentation, etc.,
124.

answer in action on, alteration after execution, 124.
answer in action on, mistake as to amount, 124.
answer in action on, by surety, 124.

answer in action on, by partner, 124.

answer in action on, denial of delivery of, 124.
answer in action on, denial of demand, refusal, etc.,

124.

answer in action on, plea of non est factum, 124.
answer in action on, confession and avoidance, 124.
answer in action on, excusing averment of due
diligence, 124.

Bill of particulars, power of court to order, 125.
scope and nature of, 125.

to what actions appropriate, 125.