complaint. Billan v. Hercklebrath, 23 Ind. 71; Moore v. Boyd, 95 Ind. 134; Fisher v. Fisher, 113 Ind. 474.

The answer should aver that no consideration existed for the execution of the contract, and not that no consideration was received by the party pleading. Anderson v. Meeker, 31 Ind. 245; Bingham v. Kimball, 33 Ind. 184.

Want of consideration must be specially pleaded to a written promise, but need not be to an oral one. Bingham v. Kimball, 17 Ind. 396; Bush v. Brown, 49 Ind. 573; Philbrooks v. McEwen, 29 Ind. 347; Beeson v. Howard, 44 Ind. 413.

If the answer purports to show an entire failure of consideration, but shows only a partial failure, it is bad. Tyler v. Borland, 17 Ind. 298.

When necessary to plead a consideration, the facts should be stated. Brush v. Raney, 34 Ind. 416; Leach v. Rhodes, 49 Ind. 291.

A plea of illegal consideration should set forth all the facts. Fisher v. Fisher, 113 Ind. 474.

A general reply to an answer of want or failure of consideration is sufficient. Farmer v. Fairman, 5 Blkf. 257; Numbers v. Bowser, 29 Ind. 491.

If the complaint avers a consideration, a general denial puts the want of consideration in issue. Butler v. Edgerton, 15 Ind. 15.

Want or failure of consideration can not be pleaded to a note payable in bank as against an innocent holder for value. Kline v. Spahr, 56 Ind. 296; Murphy v. Lucas, 58 Ind. 360; Eichelberger v. Bank, 103 Ind. 401.

A failure or want of consideration, either in whole or in part, may be pleaded to any action, set-off, or counter-claim. Webster v. Parker, 7 Ind. 185; City of Aurora v. Cobb, 21 Ind. 492; Thomas v. Hamilton, 71 Ind. 277.

370. (367.) Pleading set-off or payment, though barred.-41. A party to any action may plead or reply a set-off or payment to the amount of any cause of action or defense, notwithstanding such setoff or payment is barred by the statute.

A set-off may be pleaded, notwithstanding it be barred by time. Rennick v. Chandler, 59 Ind. 354; Armstrong v. Cæsar, 72 Ind. 280; Fox v. Barker, 14 Ind. 309; Fankboner v. Fankboner, 20 Ind. 62; Warring v. Hill, 89 Ind. 497.

371. (368.) Averment of demand at place, when unnecessary.118. In any action or defense, founded upon a bill or note, or other contract for the payment of money at a particular place, it shall not be necessary to aver or prove a demand at the place, but the opposite party may show a readiness to pay such demand at the proper place. It is not necessary to aver demand for payment of a note at the bank where it is payable. McCullough v. Cook, 34 Ind. 290; Glatt v. Fortman, 120 Ind. 384.

When a demand is necessary to create a cause of action, it must be alleged that the demand was made at the place specified in the contract. Brown v. Jones, 113 Ind. 46. A demand is not necessary when it would be unavailing. Booth v. Fitzer, 82 Ind. 66.

372. (369.) Judgment of court of special jurisdiction-Proof.— 119. In pleading a judgment or decision of a court or officer of special jurisdiction, it shall be sufficient to allege, generally, that the judgment or decision was duly given or made. If the allegation be denied, the facts conferring jurisdiction must be proved on the trial.

In a collateral attack upon the judgment of a domestic court of general jurisdiction, jurisdiction of the person will be presumed, the contrary not appearing. Dwiggins v. Cook, 71 Ind. 579,

When a sum is collectible without the benefit of valuation laws, it should be so specified in the judgment, but it is not necessary in the finding. Smith v. Tatman, 71 Ind.

171.

In an action on a judgment of a justice of the peace of another state, it should be alleged that the judgment was duly given or made, or the facts showing jurisdiction should be stated. Crake v. Crake, 18 Ind. 156; Ault v. Zehering, 38 Ind. 429; Toledo, etc., R. W. Co. v. McNulty, 34 Ind. 531.

The same rule applies to actions on judgments rendered by justices of the peace of this state. Hopper v. Lucas, 86 Ind. 43.

373. (370.) Condition precedent-Proof.-120. In pleading the performance of a condition precedent in a contract, it shall be sufficient to allege, generally, that the party performed all the conditions. on his part. If the allegation be denied, the facts showing a performance must be proved on the trial.

The party may allege, generally, that he has performed all the conditions on his part, or state the facts showing the performance. Mason v. Seitz, 36 Ind. 516; Home, etc., Co. v. Duke, 43 Ind. 418; Bertelson v. Bower, 81 Ind. 512; Watson v. Deeds, 3 App. 75.

If a party does not make the general allegation of performance, but undertakes to make specific averments, he will be held to the common law rule of strictness and particularity therein. Home, etc., Co. v. Duke, 43 Ind. 418.

The general averment of performance will apply to an obligation to make a tender. Newby v. Rogers, 40 Ind. 9.

It is sufficient as to the conditions of a policy of insurance. Louisville, etc., Co. v. Durland, 123 Ind. 544.

The word "fulfilled" is equivalent to "performed." Etna, etc., Co. v. Kittles, 81 Ind. 96.

374. (371.) Private statute.-121. 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 approval, and the court shall take judicial notice thereof.

Neither public nor private statutes of this state need be set out in pleading them; but statutes of other states, and ordinances of cities in this state, must be. Wilson v. Clark, 11 Ind. 385; Green v. City, 22 Ind. 192; Schwab v. City, 49 Ind. 329.

If a corporation exists by a private statute the statute must be pleaded to bring it before the court. Crawfordsville, etc., Co. v. Fletcher, 104 Ind. 97.

375. (372.) Libel or slander-Defamatory matter.-122. In an action for libel or slander it shall be sufficient 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.

An inference expressed in the colloquium or innuendoes, if not a correct inference from the words averred to be spoken, can not affect the sufficiency of such averments. Ausman v. Veal, 10 Ind. 355.

Perjury may be imputed to a witness on an inquest of insanity. Hutts v. Hutts, 62 Ind. 214.

Proof that the words were spoken in substance as charged is sufficient. Durrah v. Stillwell, 59 Ind. 139.

In slander, the words spoken should not be alleged with a continuando. Words spoken at different times constitute separate causes of action, and should be laid in separate paragraphs. Swinney v. Nave, 22 Ind. 178.

If words spoken derive their slanderous import from extrinsic facts, such facts must be alleged. Dodge v. Lacey, 2 Ind. 212; Ward v. Colyhan, 30 Ind. 395; Hart v. Coy, 40 Ind. 553; Emig v. Daum, 1 App. 146.

An innuendo can not change the ordinary meaning of language. Ward v. Colyhan, 30 Ind. 395; Hart v. Coy, 40 Ind. 553.

It must be averred that the defendant spoke the slanderous words. Mann v. Hauts, 40 Ind. 122; Watts v. Morgan, 50 Ind. 318.

It need not be alleged that the words were spoken in the hearing of any one, but the fact must be proven. Emmerson v. Marvel, 55 Ind. 265; Hutts v. Hutts, 51 Ind. 581. If it is charged that words charging a crime were falsely spoken, malice may be inferred. Burton v. Beasley, 88 Ind. 401.

As to what is necessary to allege in actions where a charge of perjury is claimed to have been made. Cummins v. Butler, 3 Blkf. 190; Dorsett v. Adams, 50 Ind. 129; Downey v. Dillon, 52 Ind. 442; Weston v. Lumley, 33 Ind. 486.

The allegation that a libelous letter was written and sent to the plaintiff does not show a publication. Sparts v. Poundstone, 87 Ind. 522.

376. (373.) Justification and mitigation-Evidence.-123. In all actions mentioned in the last section, the defendant may allege the truth of the matter charged as defamatory and mitigating circumstances to reduce the damages, and give either or both in evidence.

The defendant has a right in one paragraph to deny, and in another to confess, and avoid the charges. Weston v. Lumley, 33 Ind. 486.

The truth of the words alleged to have been spoken can not be proven under the general issue. Henson v. Veatch, 1 Blkf. 369; Teagle v. Deboy, 8 Blkf. 134; Kelley v. Dillon, 5 Ind. 426.

When the complaint is that the plaintiff was charged with perjury, the defendant may prove under the general denial what the testimony of the plaintiff was. Berry v. Massey, 104 Ind. 486.

Matters in mitigation may be proven under a plea of justification, or the general denial. Swinney v. Nave, 22 Ind. 178; Blickenstaff v. Perrin, 27 Ind. 527; McCoy v. McCoy, 106 Ind. 492; Heilman v. Shanklin, 60 Ind. 424.

A plea of justification must proceed on the theory that all the material averments of the complaint are admitted. Over v. Schiffling, 102 Ind. 191.

An answer of justification must set forth the particular acts the plaintiff committed. De Armond v. Armstrong, 37 Ind. 35; Sunman v. Brewin, 52 Ind. 140; Funk v. Beverly, 112 Ind. 190.

The filing of a plea of justification can not be considered in aggravation of damages. Shoulty v. Miller, 1 Ind. 544.

The plea of justification must be established David, 27 Ind. 377; Tucker v. Call, 45 Ind. 31; Wallace, 131 Ind. 347.

See Continental Co. v. Jachnichen, 110 Ind. 59.

beyond a reasonable doubt. Tull v. Hutts v. Hutts, 62 Ind. 214; Fowler v.

377. (374.) Presumption-Matters of judicial notice.-124. Neither presumptions of law nor matters of which judicial notice is taken need be stated in a pleading.

Courts take notice of their own officers and their signatures. Buell v. State, 72 Ind. 523; Hipes v. State, 73 Ind. 39.

But not of their records in other cases. Grusenmeyer v. City, 76 Ind. 549; La Plante 1. Lee, 83 Ind. 155.

Courts take notice of the population of cities and towns as shown by the census. Stultz v. State, 65 Ind. 492; Kalbrier v. Leonard, 34 Ind. 497.

And of the number of inhabitants of the state, and the votes polled at a general election. State v. Swift, 69 Ind. 505.

Also of the navigability of the streams of the state. Neaderhouser v. State, 28 Ind. 257; Ross v. Faust 54 Ind. 471.

And of the seasons and general course of agriculture. Abel v. Alexander, 45 Ind. 523; Ross v. Boswell, 60 Ind. 235.

And of the means of travel between places, and the time required to go from place to place. Hipes . Cochran, 13 Ind. 175; Ward v. Colyhan, 30 Ind. 395; Fitzpatrick v. Papa, 89 Ind. 17.

Also as to what liquors are intoxicating. Myers v. State, 93 Ind. 251; Fenton v. State, 100 Ind. 598; Schlicht v. State, 56 Ind. 173.

Courts take notice when the laws take effect. Dowdell v. State, 58 Ind. 333.

And of all matters fixed or regulated by laws of the state, and of acts of congress. Hamilton v. Shoaff, 99 Ind. 63; Spencer v. Curtis, 57 Ind. 221; McCrory v. Anderson, 103 Ind. 12; State v. Gramelspacher, 126 Ind. 398.

Courts take notice of the location of cities and towns. Railroad Co. v. Stephens, 28 Ind. 429; Cluck v. State, 40 Ind. 263; Railway Co. v. Hixon, 101 Ind. 337.

And in what county a given point is located. Railway Co. v. Lyon, 48 Ind. 119; Railroad Co. v. Pierce, 95 Ind. 496.

Also, of the incorporation of cities and towns but not of their territorial limits. Stultz v. State, 65 Ind. 492; Town v. Hetrick, 90 Ind. 545; Grusenmeyer v. City, 76 Ind. 549.

But not of the number of wards in a city. Moberry v. City, 38 Ind. 198.

378. (375.) Property distrained-Sufficient answer.-125. In an action to recover the possession of property distrained doing damage, an answer that the defendant, or person by whose command he acted, was lawfully possessed of the real property upon which the distress was made, and that the property distrained was at the time doing. damage thereon, shall be good, without setting forth the title of such real property.

379. (376.) Liberal construction-Indefiniteness, how corrected. 126. In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed; with a view to substantial justice between the parties; but when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading. to be made definite and certain by amendment.

When substantial justice is thereby done, pleadings are not to be construed most strongly against the pleader. Dickensheets v. Kaufman, 28 Ind. 251.

Specific statements in pleadings control general averments. Ragsdale v. Mitchell, Ind. 458; Spencer v. McGonagle, 107 Ind. 410.

Pleadings should be liberally construed with a view to obtain substantial justice. Stone v. State, ex rel., 75 Ind. 235.

380. (377.) Evidence under general denial.-127. Under a mere denial of any allegation, no evidence shall be introduced which does

not tend to negative what the party making the allegation is bound to prove.

No evidence is admissible under a general denial except what tends to negative what the plaintiff must prove. See section 356 and notes. Brown v. Perry, 14 Ind. 32; Moorman v. Barton, 16 Ind. 206; Pfaffenberger v. Platter, 98 Ind. 121.

Matters in mitigation of damages may be proven under the general denial. Blizzard v. Applegate, 61 Ind. 368; Allis v. Nanson, 41 Ind. 154.

381. (378.) Fictions abolished.-128. All fictions in pleading are abolished, and their use forbidden in the courts of justice in this state. 382. (379.) Paper lost or withheld-Copy used.-129. If an original pleading or paper be lost or withheld by any person, the court may authorize a copy thereof to be filed and used instead of the original.

A lost verdict may be supplied by a proved copy. Sanders v. Sanders, 24 Ind. 133. Lost papers may be supplied in all cases. Burt v. State, ex rel., 79 Ind. 359; Hunter v. Thomas, 51 Ind. 44; Desher v. Parks, 13 Ind. 394.

383. (380.) Copy of pleading for adverse party-Rule.-864. The court may, by rule, require that, when the complaint, answer, or reply in any cause is filed, the party filing the same shall also file one copy thereof for the use of the opposite party, but no copy of any exhibit need be filed; and for the filing of which copy no fee shall be taxed by the clerk.

384. (381.) Case numbers continuous.-865. Each case, when it is first filed and entered, shall be numbered; and thereafter, in all its stages in the same court, and upon every docket and book, such cause, and all the papers and exhibits filed therein, shall bear the same number as when first filed.

385. (382.) Sham pleadings.-847. An answer or other pleading shall be rejected as sham, either when it plainly appears upon the face thereof to be false in fact, and intended merely for delay, or when shown to be so by the answers of the party to special written interrogatories propounded to him to ascertain whether the pleading is false; and all surplusage, tautology, and irrelevant matter shall be set aside and struck out of any pleading, when pointed out by the party aggrieved.

A pleading is irrelevant which has no substantial relation to the controversy between the parties. Clark v. Jeffersonville, etc., R, R. Co., 44 Ind. 248.

An answer is frivolous which, if its contents are true, presents no defense. Clark v. Jeffersonville, etc., R. R. Co., 44 Ind. 248.

If a pleading appears on its face, or is shown by answers to interrogatories, to be false, it may be stricken out. Lowe v. Thompson, 86 Ind. 503.

If the pleading is not sham on its face, the question should be raised by interrogatories. Moyer v. Brand, 102 Ind. 301.

386. (383.) Allegations, when taken as true.-110. Every material allegation of the complaint 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 allegations of new matter in a reply are to be deemed contro