The plaintiff may demur to the entire answer or to any separate defense in the answer containing new matter, or to any counterclaim, on the ground that such pleading is insufficient in law to constitute a defense or counterclaim, and where a cross-complaint is interposed by the defendant it may be demurred to on the same grounds that the defendant may demur to a complaint. SECTION 7. THE REPLY. A reply is in a number of states required to be filed to new matter contained either in an answer or counterclaim, but no pleading is permitted in response to a reply except a demurrer, which may be used to raise an issue of law." The codes also provide that sham defenses may be stricken out of motion.22 Fictitious pleadings such as were used under the common law procedure in actions of ejectment and detinue, and the statement of a promise to pay in assumpsit, where no promise was made,23 are abolished by the codes, although the anomaly of the use of the common counts is sanctioned in some of the code states.2 24 At common law dilatory pleas or those which seek only to abate the particular action were required to be pleaded and disposed of before a plea in bar or to the merits of the action,25 under the codes such defenses may be united with those which seek to bar all recovery on the cause of action, and are to be tried and determined at the same time.20 30 N. Y. Code Civ. Pro., Secs. 494 495; Cal. Code Civ. Pro., Sec. "Pomeroy's Code Remedies (3rd N. Y. Code Civ. Pro., Sec. 538; 23 1 Chitty Pl., 224. Pomeroy's Code Remedies (3rd 25 1 Chitty Pl., 441. 26 Pomeroy's Code Remedies (3rd Ed.), Sec. 721. SECTION 8. AMENDMENTS TO PLEADINGS. In order to prevent a miscarriage of justice by reason of defects in pleadings, liberal provision is made for the amendment of pleadings at any stage of the cause. The most important of these provisions are the following: "A variance between an allegation and the proof is not material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. If a party insists that he has been misled, that fact, and the particulars in which he has been misled, must be proved to the satisfaction of the court. Thereupon the court may, in its discretion, order the pleading to be amended, upon such terms as it deems just." 27 "Where the variance is not material, as prescribed in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs."' 28 "Where, however, the allegation to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance * * but a failure of proof." 29 "The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading or other proceeding, by adding or striking out the name of a person as a party, or by correcting a mistake in the name of a party, 7 N. Y. Code Civ. Pro., Sec. 539; Cal. Code Civ. Pro., Sec. 469. 28 N. Y. Code Civ. Pro., Sec. 540; Cal. Code Civ. Pro., Sec. 470. 29 N. Y. Code Civ. Pro., Sec. 541; Cal. Code Civ. Pro., Sec. 471. or a mistake in any other respect * ** And in every stage of the action, the court must disregard an error or defect in the pleadings or other proceeding which does not affect the substantial rights of the adverse party." 30 SECTION 9. GENERAL MODE OF PLEADING. Various other provisions are contained in the codes which tend to simplify the structure of the pleadings, and to avoid the prolixity of statement required in pleadings at common law. Of these the most important are the following: "In pleading a judgment or other determination of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction; but the judgment or determination may be stated to have been duly given or made. If that allegation is controverted, the party pleading must, on the trial, establish the facts conferring jurisdiction." 31 "In pleading the performance of a condition precedent in a contract, it is not necessary to state the facts constituting performance; but the party may state generally, that he, or the person whom he represents, duly performed all the conditions on his part. "If that allegation is controverted, he must, on the trial, establish performance." 32 At common law all of the facts necessary to the existence of a court of special jurisdiction were required to be stated in the declaration, and in the case of conditions precedent in a contract the declara N. Y. Code Civ. Pro., Sec. 723; Cal. Code Civ. Pro., Secs. 473, 475. 31 N. Y. Code Civ. Pro., Sec. 532; tion was required to state all of such conditions separately and to show in each instance that such condition had been performed. In actions for libel and slander no extrinsic facts need be stated to show the application of defamatory words to the plaintiff, but it is sufficient to state generally that they were published or spoken concerning the plaintiff.3 SECTION 10. NOTICE OF PENDENCY OF ACTION. At common law the pendency of a suit affecting the title to real estate was notice to the world, and persons dealing with such property in good faith and in ignorance of the existence of the suit took the same subject to the result of the litigation, although nothing appeared in the office where transfers of real estate were recorded to show that a suit affecting the title to the property was pending. The following provision of the codes provides for such notice: "In an action affecting the title or the right of possession of real property, the plaintiff at the time of filing the complaint, and the defendant, at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterward, may record in the office of the recorder of the county in which the property is situated a notice of the pendency of the action, containing the names of the parties and the object of the action or defense, and a description of the property in that county affected thereby. From the time of filing such notice for record only shall a purchaser or encumbrancer of the property affected "N. Y. Code Civ. Pro., Sec. 535; Cal. Code Civ. Pro., Sec. 460. Vol. XI.-7. thereby be deemed to have constructive notice of the pendency of the action." 34 At common law a suit is commenced by the issuance of a writ or summons, and in chancery proceedings by the filing of a bill of complaint. Under the codes suit is commenced in some states by filing a complaint; in other states by the issuance 37 In some states the summons is issued by the clerk of the court in which the action is brought; " in others it may be issued by the plaintiff's attorney.38 In some states the summons must be served by the sheriff; 3 in others it may be served by any person not a party to the action.40 39 |