645

SEC. 126. [Counter-claim-Set-off-Withdrawn.-The court, at any time before the final submission of the cause, on motion of the defendant, may allow a counter-claim or set-off, set up in the answer, to be withdrawn, and the same may become the subject of another action. On motion of either party, to be made at the time such counter-claim or set-off is withdrawn, an action on the same shall be docketed and proceeded in as in like cases after process served; and the court shall direct the time and manner of pleading therein. docketed, it may afterwards be commenced in the ordinary way. If an action be not so

SEC. 127. [Judgment, how plead.]-In pleading a judgment, or other determination of a court or officer of special jurisdiction, it shall be sufficient to state that such judgment or determination was duly given or made. If such allegation be controverted, the party pleading must establish, on the trial, the facts conferring jurisdiction.

SEC. 128. [Conditions precedent.]-In pleading the performance of conditions precedent in a contract, it shall be sufficient to state 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. SEC. 129. [Action on negotiable instrument.]-In an action, counterclaim or set-off, founded upon an account, promissory note, bill of exchange or other instrument, for the unconditional payment of money only, it shall be sufficient for the party to give a copy of the account or instrument, with all credits and endorsements thereon, and to state that there is due to him on such account or instrument, from the adverse party, a specified sum, which he claims with interest. When others than the makers of a promissory note, or the acceptors of a bill of exchange, are parties in the action, it shall be necessary to state also the kind of liability of the several parties, and the facts, as they may be, which fix their liability.

SEC. 130. [Private statute.]-In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title, and the day of its passage, and the court shall thereupon take judicial notice thereof.

SEC. 131. [Libel-Slander.]-In an action for libel or slander, it shall be sufficent to state, generally, that the defamatory matter was published or spoken of the plaintiff, and if the allegation be denied, the plaintiff must prove on the trial the facts, showing that the defamatory matter was published or spoken of him.

SEC. 132. [Same-Defense-Truth.]-In the actions mentioned in the last section, the defendant may allege the truth of the matter charged as defamatory, and may prove the same, and any mitigating circumstances to reduce the amount of damages, or he may prove either.

SEC. 183. [Real property-Description.]-In an action for the recovery of real property, it shall be described with sufficient certainty to enable an officer holding an execution to identify it.

SEC. 134. [Allegations taken as true.]-Every material allegation of the petition not controverted by the answer, and every material allegation of new matter in the answer, not controverted by the reply, shall, for the purpose of the action, be taken as true; but the allegation of new matter in the reply, shall be deemed controverted by the adverse party, as upon a direct denial or avoidance. Allegations of value, or of amount of damage, shall not be considered as true by failure to controvert them. [Amended to take effect Sept. 1, 1873. G. S. 545.]

SEC. 185. [Material allegation, defined.]-A material allegation in a pleading is one essential to the claim or defense, which could not be stricken from the pleading without leaving it insufficient.

SEC. 129. Cited 10 Neb. 269. 11 Id. 237, 456. Mode is permissive merely. Facts may be stated in different form. 15 Neb. 120. SEC. 134. Cited 2 Neb. 287. 4 Id. 523. 8 Id. 78. 9 Id. 321. 11 Id. 397. Admissions in reply not valid in case stated. 14 Neb. 246. Allegation in petition not denied by answer taken as true. 5 Neb. 215. New matter denied by reply burden of proof is on defendant. sale of property to plaintiff and replication so admits, but alleges payment of purchase price to third parties at request of defendant, the burden of proof rests on plaintiff. 10 Neb. 6. 6 Neb. 219. If answer sets up payment by a

SEC. 136. [Judicial notice.]—Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in the pleading.

SEC. 137. [Original pleading lost.]—If an original pleading be lost, or withheld by any person, the court may allow a copy thereof to be substituted.

MISTAKES IN PLEADINGS, AND AMENDMENTS.

SEC. 138. [Variance-When not material.]—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 it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended upon such terms as may be just.

SEC. 139. [Same-Amendment.]-Whenever the variance is not material, as provided in the last section, the court may direct the fact to be found acto the evidence, and may order an immediate amendment without costs. SEC. 140. [Same-Failure of proof.]-When, however, the allegation of the claim or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance within the last two sections, but a failure of proof.

SEC. 141. [Petition amended before answer.]-The plaintiff may amend his petition without leave, at any time before the answer is filed, without prejudice to the proceeding; but notice of such amendment shall be served upon the defendant, or his attorney, and the defendant shall have the same time to answer or demur thereto as to the original petition.

SEC. 142. [Amendment after demurrer-Notice.]—At any time within ten days after a demurrer is filed, the adverse party may amend, of course, on payment of costs since filing the defective pleading. Notice of filing an amended pleading shall be forthwith served upon the other party, who shall have the same time thereafter to answer, or reply thereto, as to an original pleading.

SEC. 143. [Demurrer overruled-Answer-Reply.]-Upon a demurrer being overruled, the party who demurred may answer or reply, if the court be satisfied that he has a meritorious claim or defense, and did not demur for delay.

SEC. 144. [Amendments in furtherance of justice.]—The court may, either before or fter judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. And whenever any

SEC. 137. Cited 11 Neb. 471.

SEC. 138.

Cited 12 Neb. 99.

SEC. 142. This section refers to amendments out of term and without leave of court, but not to amendments made in open court by leave of court. 8 Neb. 445.

SEC. 143. The defendant may be required to plead instanter. 9 Neb. 310.

SEC. 144. Section applies solely to pleadings etc., 14 Neb. 429. Presumption that amendment made was in "furtherance of justice." 16 Neb. 611. Defective verification may be amended. 2 Neb. 136. So may a defective appeal bond, in appellate court, with consent of sureties. 3 Neb. 121. An amendment to summons by correction of a mistake in name of plaintiff relates back to the time of service. 4 Neb. 177. If during trial the court permit an amended petition to be filed, and defendant objects to the introduction of evidence thereunder on the ground that such petition does not state a cause of action, and the court overrules the objec tion and admits the testimony, it is error for the court to afterwards permit the plaintiff to file an amended pe tition conformable to the facts proved. 7 Neb. 320. But this rule does not apply when testimony is admitted without objection. 8 Neb. 318. A note was changed by a payee from $217.36 to $208.12, and transferred before maturity to an innocent holder. Held, That as the alteration was not made with a fraudulent intent, & recovery could be had upon the original consideration, and petition amended accordingly. 9 Neb. 5. Power of court to amend and correct record. 6 Neb. 281. Amendment on appeal. 12 Neb. 393. Amendment discre tionary with court. 3 Neb. 95. But if it deprives party of substantial right supreme court will grant relief; application to amend should be made before cause dismissed. 7 Neb. 53, 319. Amendment cannot insert new cause of action. 6. Neb 319. But objection waived not being made in trial court. 10 Neb. 416. Amendment to conform to facts proved, allowed. 7 Neb. 58. Not allowed. Id. 307. Allowed where testimony is admitted without objection. 8 Neb. 318. Where party fails to maintain action on note, petition may be amended after testimony is in so as to declare for money had and received. 14 Neb. 261. In action against partnership, when on trial it appears that transaction was with one member in his individual capacity, amendment allowed. 6 Neb. 495. Amendment of petition in open court does not operate as extension of time to answer. S Neb. 445. Amendment in supreme court, of petition, allowed so as to fully state cause or action. 14 Neb. 490.

proceeding taken by a party fails to conform, in any respect, to the provisions of this code, the court may permit the same to be made conformable thereto, by amendment. [Amended 1875, 35. Took effect Feb. 4, 1875.]

SEC. 145. [Immaterial errors disregarded.]-The court, in every stage of an action, must disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.

SEC. 146. [Demurrer sustained-Amendment.]-If the demurrer be sustained, the adverse party may amend, if the defect can be remedied by way of amendment, with or without costs, as the court in its discretion shall direct.

SEC. 147. [Continuance upon amendment.]-When either party shall amend any pleading or proceeding, and the court shall be satisfied, by affidavit, or otherwise, that the adverse party could not be ready for trial in consequence thereof, a continuance may be granted to some day in term, or to another term of the court. SEC. 148. [Unknown defendants-Designations.]-When the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name and description, and when his true name is discovered, the pleading or proceeding may be amended accordingly. The plaintiff in such case must state, in the verification of his petition, that he could not discover the true name, and the summons must contain the words "real name unknown," and a copy thereof must be served personally upon the defendant.

SEC. 149. [Supplemental pleadings.]-Either party may be allowed, on notice, and on such terms as to costs as the court may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer, or reply.

SEC. 150. [Actions consolidated.]-Whenever two or more actions are pending in the same court which might have been joined, the defendant may, on motion and notice to the adverse party, require him to show cause why the same shall not be consolidated, and if no such cause be shown, the said several actions shall be consolidated.

SEC. 151. [Same-Order.]-The order for consolidation may be made by the court or by a judge thereof in vacation.

TITLE VIII.-PROVISIONAL REMEDIES.

CHAPTER I.—ARREST AND BAIL.

SEC. 152. [Arrest-When made.]-A defendant in a civil action can be arrested before and after judgment, in the manner prescribed by this code, and not otherwise; but this provision does not apply to proceedings for contempt, nor does it apply to actions or judgments prosecuted in the name of the state of Nebraska, to recover fines or penalties for crimes, misdemeanors, or offenses.

SEC. 153. [Affidavit-Order.]-An order for the arrest of the defendant shall be made by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plaintiff, his authorized agent or attorney, made before any judge of any court of the state or clerk thereof, or justice of the peace, stating the nature of the plaintiff's claim, that it is just, and the amount thereof, as nearly as may be, and establishing one or more of the following particulars: First. That the defendant has removed, or begun to remove, any of his property out of the jurisdiction of the court, with intent to defraud his creditors. Second. That he has begun to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors. Third. That he has property or rights of action, which he fraudulently conceals. Fourth. That

SEC. 145. Cited 13 Neb. 32.

SEC. 147. Continuance discretionary. 1 Neb. 119. 5 Id. 190. 11 Id. 394. But if abuse of discretion shown, new trial will be granted. 14 Neb. 273. Affidavit must state evidence expected to be given. 1 Neb. 118. 6 Id. 338. 11 Id. 293. Made on information and belief, insufficient. 5 Neb. 97. If based on infor. mation derived from others, facts and reasons should be stated. 14 Neb. 206. Should be specific and give facts with such particularity that indictment for perjury would lie in case of its being false. 14 Neb. 273. Counter affidavits not proper. 6 Neb. 337. 14 d. 505. Continuance on amendment of pleadings; party desiring must apply to court. 8 Neb. 445. In criminal cases see 14 Neb. 503, 544. See also 15Neb. 659.

SEC. 152. Cited 2 Neb. 15. See Const., Sec. 20, p. 16.

he has assigned, removed, disposed of, or has begun to dispose of his property, or a part thereof, with intent to defraud his creditors. Fifth. That he fraudulently contracted the debt or incurred the obligation for which the suit is about to be or has been brought. The affidavit shall also contain a statement of the facts claimed to justify the belief in the existence of one or more of the above particulars.

SEC. 154. [Bond.]-The order of arrest shall not be issued by the clerk until there has been executed, by one or more sufficient sureties of the plaintiff, a written undertaking, to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the arrest, if the order be wrongfully obtained, not exceeding double the amount of the plaintiff's claim stated in the affidavit.

SEC. 155. [Order-When issued.]-The order may be made to accompany the summons, or at any time afterwards, before judgment.

SEC. 156. [Same-Contents.]-The order of arrest shall be addressed and delivered, with a copy of the affidavit, to the sheriff. The order shall state the names of the parties, the court in which the action was brought, and the amount of the plaintiff's claim specified in the affidavit, and shall require the sheriff to arrest the defendant, and hold him to bail in double the sum stated in the affidavit, and to make return of the order on a day to be named therein, with the undertaking of the bail, if any be given.

SEC. 157. [Same-Returnable.]-The return day of the order of arrest, when issued at the commencement of the suit, shall be the same as that of the summons; when issued afterwards, it shall be fifteen days after it issued.

SEC. 158. [Same-Execution.]-The sheriff shall execute the order by arresting the defendant, and delivering to him a copy thereof, and of the affidavit. If the defendant cannot be found before the return day, the plaintiff shall be entitled to further orders without other affidavit or undertaking, until the defendant is arrested; but orders of arrest shall not be issued to any other than the county in which the action is brought.

SEC. 159. [Arrest-Committal.]-The defendant, when arrested, shall be committed by the sheriff to the jail of the county, and kept in custody until discharged by law.

SEC. 160. [Release-Payment of claim.]-The defendant may, before or after giving bail, deposit in the hands of the sheriff, or in the court, the amount of money mentioned in the order of arrest; whereupon he shall be discharged, or his bail, if any be given, shall be released.

SEC. 161. [Same-Payment into court.]-The sheriff shall pay into court the money received by him in lieu of bail; if received in vacation, he shall pay it on the first day of the next term; if received during a term, he shall pay it immediately.

SEC. 162. [Same-Disposition of money.]-The court shall make proper orders for the safe keeping of money deposited in lieu of bail. It may direct the sheriff to keep the money, and after final judgment in the action, shall order it to be paid to the party entitled thereto, according to the result.

SEC. 163. [Same-Liability of sheriff.-Money so deposited with the sheriff, in lieu of bail, or directed by the court to be kept by him, shall be held upon his official responsibility; and he and his sureties shall be liable, and may be proceeded against, for any default in relation thereto, as in other cases of delinquency.

SEC. 164. [Bail--When allowed.]-Bail may be given by the defendant on his arrest, or at any time afterwards, before judgment. It shall be done by causing one or more sufficient bail to execute a written undertaking to the plaintiff, in the presence of the sheriff, to the effect that, if judgment shall be rendered in the action against the defendant, he will render himself amenable to the process of the court thereon. The undertaking, when accepted, shall be returned to the clerk's office, and the defendant discharged.

SEC. 165. [Same-Objections.]-The plaintiff, or his attorney, may object to the bail for insufficiency, at any time within ten days after the undertaking of the bail has been given; within such time he shall serve upon the sheriff a written notice that he does not accept the bail, or he shall be deemed to have accepted it, and the sheriff shall be exonerated from liability. When the undertaking is given after the return of the order of arrest, the plaintiff shall have notice thereof. SEC. 166. [Same-Justification.]-On the receipt of such notice the sheriff or defendant may, within ten days thereafter, give to the plaintiff, or his attorney, notice, in writing, of the justification of the same or other bail, before a judge, or clerk of the court, in which the action is brought, a probate judge, or justice of the peace, at a specified time and place; the time to be not less than five nor more than ten days thereafter. In case other bail be given there must be a new undertaking.

SEC. 167. [Same.]-For the purpose of justification, each of the bail must attend before the proper officer at the time and place mentioned, and may be examined on oath or affirmation touching his sufficiency, in such manner as the officer may think proper.

SEC. 168. Same Sufficiency-Proceedings.]-If the officer finds the bail sufficient, he shall indorse his allowance on the undertaking, and cause the same to be filed with the clerk; and the sheriff shall thereupon be discharged from liability.

SEC. 169. [Escape of defendant.]-If, after being arrested, the defendant escape or be rescued, or bail be not taken, or be adjudged insufficient, or a deposit be not made, the sheriff shall be liable as tail. But he may discharge himself from liability by putting in sufficient bail at any time before judgment.

SEC. 170. [Same-Liability of sheriff.]—The return of "not found" upon an execution against the body of the defendant, shall be necessary to fix the liability of the sheriff as bail, which liability shall be the amount of the judgment, interest, and costs. This liability can be enforced only in a separate action against him, or against him and his sureties on his official bond, as in other cases of delinquency.

SEC. 171. [Bail insufficient–Liability.]—The bail adjudged insufficient shall be liable to the sheriff for the damages he may sustain by reason of such insufficiency.

SEC. 172. [Liability of bail, how fixed.]-The liability of the bail shall be fixed in the manner provided in section one hundred and seventy, for fixing the liability of the sheriff as bail, and the bail can be proceeded against in an action only.

SEC. 173. [Bail, how discharged.]-A surrender of the defendant to the sheriff of the county in which he was arrested, with a delivery of a certified copy of the undertaking of the bail, whether such surrender be made by the defendant himself, or by his bail, shall discharge the bail; and such surrender may be made at any time before the return day of the summons in an action against the bail. The sheriff shall give to the bail a written acknowledgment of the surrender, and hold the defendant in his custody, upon said copy of the undertaking of the bail, as upon an order of arrest. On the production of the sheriff's acknowledgment of the surrender, to the clerk of the court, an exoneration of the bail shall be entered on his undertaking.

SEC. 174. [Same-Arrest of defendant by bail.]-For the purpose of surrendering the defendant, the bail, at any time or place, before he is finally charged, may himself arrest him, or by a written authority indorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so.

SEC. 175. [Bail, how exonerated.]-The bail will be exonerated by the death of the defendant, or his imprisonment in a state prison, or by his legal discharge from the obligation to render himself amenable to the process of the court, or by his surrender to the sheriff of the county in which he was arrested in execu