Complaint or petition- Continued.

in actions by or against sureties, ? 204.
in trespass, 207.

for construction of will, 212.

on written instruments, 213.

variance between averments in, and proof, 214, 223.
variance between, and summons, 224.

amendment of, at trial, 233.

amendment of, after demurrer,

amendment of, as of course, 228.

232.

correction of formal defects in, 243-251.
waiver of filing of, 260.

when deemed sufficient, 272.

sufficiency of, in federal courts, 282.

remedy for indefiniteness in, 246, 248, 284.

Conclusions of law, should not be set forth in pleading, 11.
are such as give no facts but only matter of law, 11.
instances of, 11.

denial of, puts no fact in issue, 63.

not admitted by demurrer, 42.

Conditions, averring performance of, 22, 195, 205.
setting out excuse for non-performance, 22.
performance of, how pleaded, 22, n. 4.

when strictness in averring performance required,

22.

mutual, pleading in case of, 22.

when tender of performance of, not necessary, 22.
traverse of alleged breach of, 128.

in contracts of subscription to stock, 203.
precedent, averment of waiver of, 203.

Confession and avoidance, matter in nature of, 61, 66.
Consistency, required in pleading, 17.

want of, construed against pleader, 17.

must pertain to causes of action united, 17.

instances of, in pleading, 17.

want of, remedied by motion, 251.

between relief granted and case made, 33.

Consideration, when gist of action must be specially
averred, 19, 218.

how set out in pleading, 19.

need not be alleged in action on sealed instrument,
19.

no allegation of, necessary in action on bill of ex-
change, 19, 123.

if executory agreement must be pleaded, 19.

BOONE PLEAD. — 46.

Consideration- Continued.

words "for value received" imports, ? 19.
for indorsement of note, allegation of, 123.

want or failure of, as defense to action on note, 71,
124.

want of, how shown in defense, 71.

failure of, to be pleaded specially, 71.
extent of want of, as a defense, 71.
illegality of, must be specially pleaded, 71.
Conspiracy, when subject of civil action, 134.

when necessary to be averred and proved, 134.
how averred in complaint, 134.
insufficient averment of, 134.

complaint in action for, must be specific, 134.
Construction, of statute allowing counter-claims, 87.
of pleading, rule of common law, 272.
of pleading, rule under Code system, 272.
rule of, liberal under Codes, 272, 277.
liberal rule of, limited to matters of form, 272.
allegation and the proof must correspond, 272.
the judgment must follow the pleadings, 272.
of complaint, rule applied to, 272, 273, 275.
presumptions in favor of pleading, 273.

stricter rule of, applied upon motion to strike out
or make more definite, 273.

rule of, in regard to matters of substance, 274.
in case of ambiguous pleading, 274.

instances of, unfavorable to pleader, 275.

pleading must be construed according to what it
says, 276.

of language, according to its ordinary meaning, 276,
277.

of verified pleading, 276, 279.

reference

276.

to demand for judgment or relief,

facts alleged must control rather than conclusions,
276.

fact regarded and legal conclusion disregarded,
276.

of words and phrases in pleadings, 277.

of word having different meanings, 277.
of abbreviations in pleading, 278.

of allegations as to time, 279.
of admissions in pleading, 280.
of pleadings in mandamus, 168 a.

Contract, how set forth in complaint, ?? 26, 135.
may be stated according to legal effect, 26.
to be set forth as altered, 26.

breach of, how pleaded, 26, 140.

action on, cannot be united with action on tort, 135.
material facts only to be set forth in action on, 135.
sufficient averments in complaint on, 135.

breach of, how stated in complaint, 26, 135.
suit for money demand on, 135.

pleading on, according to legal effect, 135.
presumption that complaint correctly states, 135.
when copy of, need not be set out, 135.
parol, how pleaded, 135.

complaint on, for sale of real estate, 135.

all obligees must join in action for breach of, 135.
for purchase of land, allegation of tender of con-
veyance, 135.

allegation of damages in action for breach of, 140.
what damages recoverable in action on, 140.

to what damages plaintiff's recovery is limited, 140.
pleading when rescission of, is sought, 104.
Contribution, when prima facie case for, is made, 205.
what complaint for, should show, 204.
when right of action for, accrues, 204.

not necessary to allege payment under compulsion
of suit, 204.

pleading facts rebutting equity to, 205.

effect of extension of time to co-surety, 205.

Conversion, defined, 136.

foundation of right of action for, 136.

sufficiency of allegations in complaint for, 136.
insufficient averment of, 136.

allegation of plaintiff's ownership, 136.

action for, by administrator, 136.

allegation of value of property converted, 136,

description of property converted, 136.

averment of demand and refusal, 136.

measure of damages in action for, 136.
demand of relief in action for, 136.
waiver of tort in action for, 136.
of notes, complaint in action for, 136.

evidence under general denial in action for, 137.
defenses in action for, 137.

general denial and justification inconsistent as

defense in action for, 137.

Conversion-Continued.

of note, defense to action for, ? 137.
estoppel as defense in action for, 137.
of thing pledged by pledgee, 183.
construction of term in pleading, 277.

estoppel of plaintiff to claim title as defense to
action for, 222.

rejection of allegation of, as surplusage, 132, 135.
evidence in mitigation in action for, 76.
Corporation, existence of, how pleaded, 31, 138.
foreign, averments as to existence of, 31.
complaint in action by or against, 31, 138.
remedy for omission to allege existence of, 138.
designation of name in suit against, 138.
allegation of capacity in action by or against, 138.
insufficiency of complaint in action against, 138.
what complaint in action by, must allege, 138.
action by, on stock subscription, 138.
existence of, how put in issue, 139.

answers to actions by and against, 139.
answer of nul tiel corporation, 139.

when existence of, admitted, 139.

question of power of, to be specially pleaded, 139.
pleading extinction of, 139.

when denial of existence of, sticken out of answer,
139.

legality of election of officers, 139.

actions against, for negligence, 174.

actions by, on stock subscriptions, 203.

action against, for false representation, 277.

may deny on information and belief, 62.

raising issue as to existence of, 62.

Counter-claim, what is meant by, 84.

is a cause of action in favor of defendant, 84, 88,
114.

test as to admissibility of, 84, 114.

what does not constitute, 84.

what claims or demands embraced in, 85.

includes set-off and recoupment, 85.

extent of, limited in some States, 85.

may generally be for liquidated or unliquidated

damages, 85, 89.

may be of an equitable or legal defense, 85.

as affected by parties to action, 86.

in actions by or against partners, 86.

Counter-claim - Continued.

affirmative judgment on, not allowed against
State, 2 86.

in actions by or against sureties, 86.
statute allowing, is liberally construed, 87.
connection of, with subject of action, 87.
what may not be subject of, 87.

in actions on contract, 88.

test of sufficiency of, on contract, 88.

claim barred by limitation not available as, 88.

in cases of tort, 89.

when may be set up, general rule, 89.

in actions for services, 90.

assault and battery, 91.

in actions for divorce, 92.

in foreclosure cases, 93.

in actions between landlord and tenant, 94.
in actions for goods sold, 96.

in actions relating to real property, 96.

in action for breach of contract of sale, 97.
in action to restrain use of trade-mark, 97.
in actions against carriers, 97.

in actions on notes, 97.

covenant not to sue as, 97.
setting up fraud as, 97.

in what cases not pleadable, 98.
usury not usually subject of, 98.

when matters of tort not pleadable as, 98.
must be founded on existing demand, 99.
defeat of, by assignment, 99.

claims in different rights as subject of, 99.
defendant not obliged to set up, 100.
may be enforced in separate action, 100.
when not subject of independent action, 100.
waiver of, 100.

how matter constituting, is pleaded, 101.

need not answer whole of plaintiff's action, 101.
grounds of demurrer to, 111, 114.

form and sufficiency of demurrer to, 111.

when demurrer to, goes back to complaint, 112.
remedy for irrelevant or redundant matter in, 114,
116.

judgment on overruling demurrer to, 117.

of adultery and cruelty in action for divorce,