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A>., 253.

> § 125 [152]. Describing land in action to recover or subject it. — I. A

petition for the recovery of land, or for its subjection to a demand of
the plaintiff, must describe it so that it may be identified.

2. In an action for the recovery of land, the answer of the defendant
must state whether or not he claims it, or any part of it ; and, if he
claim part of it, his answer must so describe* such part that it may be
identified. The making of such statement, or of such statement and

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description, shall not, of itself, throw on the defendant the burthen of
proving his right to the land claimed by him ; but, if the plaintiff recover
any part thereof, the defendant shall pay the costs of the action.

1. The case of Farrow v. Farrow, 2/ J. M., 388, aptly illustrates the loose practice
which prevailed, and which the Code attempts to reform, concerning the description of
land claimed by the plaintiff, and of that claimed by the defendant, in actions of eject-

2. The common law rule, that a judgment against the plaintiff, in an action of eject-
ment, can not be pleaded in bar of another action for the same land, has been abolished,
by statutes, in Kentucky. I Bush, 482.

3. As to describing land in an order of sale, see note (o) to \ 390.

§ 126 [153]. Wfiat allegations to be taken as true unless traversed. —
Every material allegation of a pleading must, for the purposes of the
action, be taken as true, unless specifically traversed (a), excepting
these, which must be proved though not traversed :

1. Allegations of a petition, or cross-petition, against a defendant
who is under any disability except coverture.

2. Allegations of an answer, or reply, so far as it states a set-off or
counter-claim against a new party who is under any disability except

3. Allegations against a defendant constructively summoned, who
has not appeared in the action (b).

4. Allegations concerning value or amount of damage, not accom-
panied by an allegation of an express promise, or by a statement of
facts showing an implied promise, to pay such value or damage : such
allegations, so accompanied, need not be proved unless traversed (c).

(a) 1. A fact not alleged in the petition can not be taken as true because defendant fails
to answer an interrogatory with reference thereto. 18 B. A f ., 71.

2. If a matter which shows that the plaintiff has no right to recover be pleaded by one
only of several defendants, it will equally avail the others ; such as a plea of limitation
{Hinton v. Fox, 3 Litt., 380), or a plea of payment {Rouse v. Howard, I Duv., 31) ; and an
adult defendant is entitled to the benefit of such plea by the guardian ad litem of an infant
defendant (79 Ay., 291) : but, in action for malicious prosecution, a plea of probable cause
by one defendant does not avail another. 7 Mon., 401.

3. A set-off against the plaintiff and another can not be taken for confessed against the
plaintiff until the other is brought before the court (2 Bush, 603) ; and, in an action in
equity, it was said that a judgment pro confesso should not be rendered against one defend-
ant before process is served upon others concerned with him in interest. Alexander &
Lancashire v. Quigle/s ex*rs, 2 Duv., 402.

4. A judgment, merely, that allegations of a petition be taken for confessed, was held
to be interlocutory. Alexander <5r* Lancashire v. Quigley's ex J rs, 2 Duv., 402. But see Ken-
drick v. Fields, 2 Bush, 153, which was an action for damages for the conversion of per-
sonal property. Judgment was rendered pro confesso except as to the allegation of value,
and the case was continued for an inquiry as to the value : held, that the judgment was

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J as to the defendant's guilt, and as to the articles alleged to have been taken, lea
hing for litigation except the value of the property.

(b) I. Under an act of 1837 (3 St. L., 14), which declared that no bill should be U
confessed against a defendant constructively summoned, and that the clerk shoul
uired by the court to enter a general traverse of the bill, it was held that such trav<
in action on a written contract, was not equivalent to a verified plea of mm est fact

1. consequently, that the plaintiff was not bound to prove the execution of thecont
B. M., 131) : and such is the law now. 1 Met., 649; 3 Id., 516.

And in Gill v. Johnson's adm'rs, 1 Met., 649, it was held that possession of a note b
\ma facie evidence of ownership, the plaintiff is not bound to prove his title, though ti
no assignment indorsed on it. But, as to this, see Gano v. McCarthy's adm y r, 79 Ky., .
And if the debt be so ancient that a presumption of payment arises, it must be rebu
proof. Calk v. Chiles, 9 Dana, 265.

In an action against a non-resident to enforce a lien on land for the purchase-moi
plaintiff alleged that the first installment had been paid, and filed a deed (wl
1 never been delivered) reciting such payment. In an amended petition it
jged that the acknowledgment of payment in the original petition was a mistake,
,t no part of the first installment had been paid : held, that the allegations of
ended petition did not overcome the recital in the deed and the admission made in
ginal petition. Jackson v. Speed, 2 Duv., 426.

2. See \ 58, subs. 6, and note thereto, as to proof of non-residence or absence <
endant constructively summoned.

3. See §409 as lo the effect of plaintiff's affidavit as evidence.

(c) I. The Code of 1854 (§ 153) declared that "allegations of value, or of amount
nage, shall not be considered as true, by the failure to controvert them ; " and it
d that an allegation of value or damage could not be taken for confessed in an ac

damages on an attachment bond (14 B. M. f 517); in an action for the value of
Dngfully converted by the defendant to Jiis own use (14 B. M., 393); in an action
spass on the plaintiff's land (18 B. A/., 226) ; in an action for the value of goods wl
ommon carrier failed to deliver according to contract (1 Met., 558) ; or the value of c
:es which the defendant failed to assign according to his covenant (3 Met., 196) ; or
ue of clothing which the defendant failed to furnish according to his covenan
/., 282) ; or the value of whisky which the defendant failed to deliver according tc
renant (5 Bush, 426) ; or the value of plaintiff's services as an attorney (5 Bush, 1
for the conventional price of stipulated services, part of which the defendant refuse
the plaintiff perform. 6 Bush, 507.

But allegations of value were taken for confessed in an action for the value of ma
vices and medicine (15 B. J/., 628), and in actions for the value of goods sold and d
d to the defendant. 18 B. M., 57; 2 Bush, 197.

2. It has been held that, under the present Code, allegations of value may be t;
confessed in an action for the use and occupation of land held by the defendant u

oid lease (80 Ky., 61) ; and in an action for the value of labor and material furnishc

\ defendant. 82 Ky., 200.

And, as a plaintiff, whose property has been wrongfully converted by the defendai

own use, may waive the tort and sue upon an implied contract to pay the value ol

>perty (3 Bush, 51, 523), it seems clear that, in such an action, the allegation of 1

y be taken for confessed.

But " the law does not imply a promise to pay damages which the defendant has <

rited to pay." 4 Met., 284.

3. See #379 and notes thereto, as to assessment of damages or value when such as
nt is necessary ; and % 312 and 331 as to the defendant's right to a trial by jury.

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§ I2 7 [154J- Material allegation defined. — A material allegation is
one which is necessary for the statement or support of a cause of action
or defence.

§ 128 [155]. Filing of writings relied on as evidence. — I. In addition
to the writings which a party is required by § 120 to file as the foun-
dation of his action or defence, he may file, as an exhibit, with his
pleading, or, with leave of court at any time pending the action, any
writing upon which he may intend to rely as evidence (a).

2. In an equitable action, such exhibits shall constitute part of the
record, unless it show that they were not used on the trial.

3. In an ordinary action, such exhibits shall not constitute part of
the record, unless it show that they were used on the trial.

[a) I. This section is a substitute for §155 of the Code of 1854, which declared that
" if either party shall rely upon any deed or other writing, he shall file with his pleading
the original deed or writing, if in his power. If he can not produce such deed or writing,
he shall so state in his pleading, together with the reason therefor; and if such reasons
are sufficient, he may file the best evidence of such deed or writing in his power. Original
deeds and other writings, filed by either party as above provided, shall remain on file for
the inspection of the other party, until allowed by the court to be withdrawn ; and, in
such cases, copies, attested by the clerk, shall be substituted by the party withdrawing the

It was held, however, that said \ 155 did not apply to writings on which actions are
founded, such as a note for money, or a covenant to perform an act; that it only applied
to exhibits, such as a deed relied on by the plaintiff to prove his title to land, in an action
against an adverse possessor ; or an execution, and return thereon, relied on by the de-
fendant to justify the seizure of the plaintiff's property; that such exhibits might be used
as evidence, though not relied upon in pleading, and need not be so used, though so relied
upon ; that they did not constitute part of the record, though filed and referred to in
pleadings ; that they could be made part of the record only by a bill of exceptions ; and that
no benefit could result from relying on them in pleadings except that given by \ 527 [588].
3 Met., 95 J 18 B. M., 633, 824.

2. Section 552 of this Code requires, as a general rule, that the proof in equitable
actions shall be made by depositions or exhibits: with a proviso "that the genuineness of
exhibits may be proved orally in court, as heretofore allowed by law."

Of course, exhibits may be proved, by depositions, in an equitable action ; or, viva
voce, upon the trial of an ordinary action. The only question is as to proving exhibits,
viva voce, in equitable actions.

In Christ v. Brashears, 3 Mar., 170, it was held that papers which were not referred
to in the pleadings, though they were filed with a deposition in the case, could not be
proved ore Unus, upon the trial of a suit in chancery.

"The practice in England, when a party desires to prove exhibits viva voce in court, on
the hearing, is to procure an order for leave to do so. But to entitle the party to make
the proof, a copy of the order must be served on the clerk of the opposite party, at least
two days before the hearing. I Smith? s Practice, 413. The practice here has been to prove
exhibits either at or before the hearing ; and there can be no great objection to indulging
the proof, as well before as at the hearing, as witnesses may, with most facility, be pro-
cured to attend. But we think notice of the day when the proof will be made should be
given to the opposite party or his counsel." Cosby 's heirs v. Wickliffe, 7 B. M. t 121.

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3. It was held, that the execution of a deed, which was made an exhibit by the com-
plainants, must be considered as admitted by them when offered in evidence by the defend-
ant, although not properly authenticated. Borah v. Archers, 7 Dana, 176.

4. It was held, that, if a bill in equity refer to a pending action, as an exhibit, the
court must consider subsequent, as well as previous, proceedings therein. Daniel and Breck t.
Smythe, 5 B. M., 347.

5. Objection to an exhibit, for want of formality in authentication, can not be made
for the first time in the Court of Appeals; but, if there has been no attempt at au-
thentication, or if the attempted authentication be by a person not authorized to make it,
the exhibit is not evidence against infant-defendants, though not objected to, but is evi-
dence against adults unless objected to in the court below. Barret v. Godshaw, 12 Bush, 60a



} 129. Variance between pleadings and proof, what, is material.

% 130. amendment, if material.

§ 131. when deemed failure of proof.

\ 132. Amending petition before answer.

$ 133. Pleading, upon overruling of demurrer.

\ 134. General provisions as to amendments.

\ 135. Supplemental pleadings.

\ 136. Continuance on amendment.

\ 137. Verification of petition before trial.

\ 138. of pleadings unnecessary after trial begins.

\ 139. amendments may be allowed without.

§ 129 [156]. Variance between pleadings and proof . — No variance
between pleadings and proof is material, which does not mislead a party,
to his prejudice, in maintaining his action or defence upon the merits.
A party who claims to have been so misled must show that fact to the
satisfaction of the court; and, thereupon, the court may order the plead
ing to be amended, upon such terms as may be just.

1. Chitty{vo\. I, p. 303), after referring to several cases, says: "From the precedinj
observations it may be collected that, if the consideration or the contract proved in evident
vary from that stated in the pleadings, the plaintiff will be non-suited. A trivial variation
in setting out a contract, a record, or any written instrument, is fatal, because it does no
appear that the contract given in evidence is that on which the plaintiff declares ; it is mat
ter of description."

2. It was held that an action for money had and received by the defendant for th<
plaintiff's use, was not supported by proof that defendant received "Ohio bank notes'
($/./. M., 6) ; and that an action for money or dollars was not supported by proof tha
notes of the bank of the Commonwealth were due ($J. J. M., 431) ; but a bill for "cur
rent exchange," — which, under the R. S., ch. 22, § 11, is to be " treated in all respects a
if drawn for money, except as to the value of the currency in which it is payable " — wa
declared on as a bill for money, and on demurrer the variance was held to be immaterial
Morrison <Sr» Co. v. Tate, I Met., 569.

3. In Adams v. Brown, 4 Litt., 7, the court said: "The injunction is described in th<
condition of the bond, as stated in the declaration, as an injunction which Heard obtain*

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against the plaintiff for f ioo, with interest, &c. ; whereas the condition of the bond, as
spread upon the record, describes the injunction as restraining 'all further proceedings upon
t judgment obtained by the plaintiff against Heard . . . except so much as $50, with
interest and costs upon the judgment.'

" These descriptions of the injunction are, in terms, manifestly different. The injunction
for $100, and the injunction restraining proceedings upon a judgment, except $50, with
interest and costs, may indeed be the same in effect ; but there is no averment that they are
so ; and where the descriptions are so varied, without such an averment, they can not
judicially appear to be the same."

4. Allegation that defendant covenanted to pay to plaintiff all costs and damages which
he might sustain, &c, is not supported by a bond to pay the plaintiff all costs and 'damages
which migh accrue, &c. 4 Lift., 8.

5. Where the declaration, in stating the bond payable three months after date, said
nothing about interest, and oyer was given of a bond bearing interest from date, the vari-
ance was held to be fatal. 3 Mon., 205.

6. Where the declaration alleged that defendant agreed to pay plaintiff ^90, one-half in
cash, and the other in whisky and horse-flesh, to be between the value of twenty-one pounds
and twenty-five pounds, and the agreement was to pay one-half in cash, and the other in
whisky and horse-flesh to be between the value of twenty and twenty-five pounds, the va-
riance was held to be fatal. Litt. S, C, 2.

7. Difference between date for delivering property, as stated in the declaration and as
shown by the proof, was held to be material. 7 B. Af. t 271.

8. In an action for a breach of warranty on the sale of a horse, plaintiff alleged that
the price of the horse was $66, to be paid by the plaintiff, and the proof was that the
plaintiff paid $50 and gave his note for $16, and the variance was held to be fatal. 8
B. M., 377.

9. There is a fatal variance between a promise " to pay plaintiff such sums of money as
might be necessary for food, raiment, &c," and a promise " to support and take care of
the plaintiff." 8 B. M., 424.

10. Covenant of an executor, as such, can not support an action against him individually
(I Dana, 208) ; and in an action on a note against A, as administrator of B, it was held
that there could be no judgment against him as administrator, because he executed the
note individually ; and that there could be no judgment against him individually, because
the petition stated that he executed the note in his "fiducial capacity," and asked for
judgment against him in that capacity. 1 Met., 426.

11. In an action on a note payable to A, and indorsed to the plaintiff, the petition
alleged that the note was payable to the plaintiff, and referred to it, but made no reference
to the assignment. The note was filed with the petition. A judgment by default was
reversed on account of the variance between the petition and note. Dodd v. King, 1
Met., 430.


12. In an action upon a writing which purported to be an unconditional guaranty, but
which did not express the consideration on which it was executed, the petition alleged
that the contract was conditional, depending for its validity upon the performance of
certain acts by the promisee : held, that there was no variance between the contract con-
tained in the writing and that stated in the petition. Steadman v. Guthrie, et a/., 4 Met.,
153, IS*

13. In an action for the services of slaves for the year 1863, the proof was that they
were hired for the year 1864 ; and the variance was held to be immaterial. Gentry v. Doolin>
I Bush, 1.

14. In an action on a note alleged to have been executed and delwered to the plaintiffs,
there being no denial by answer of that allegation, a variance between the petition and

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1 74 PLEADINGS. [title vii.

the note, as to the name of one of the plaintiffs, was held to be immaterial. Anderson v.
Rogers & Clark, I Bush, 200.

15. The allegation, in a petition, of willful negligence, necessarily includes all inferior
grades of negligence. L. C. & L. R. R. Co. v. Case's adrn'r, 9 Bush, 733.

16. See Woodcock v. Farrell, 1 Met, 437, for a discussion as to \ 129.

§ ! 3° [*57]- Amendment, if variance immaterial. — If such variance
be not material the court may direct the fact to be found according to
the evidence, and may order an immediate amendment.

Upon the subject of amendments, see \ 134 and note (c) thereto.

§ 131 [158]. Failure of proof . — If, however, the allegation of the
claim or defence, to which the proof is directed, be unproved, not in
some particular or particulars only, but in its general scope and mean-
ing, it is not to be deemed a case of variance within the last two sections,
but a failure of proof.

^Amended by act of March 24, 1888, by adding the following words :
"In an action on a contract alleged to have been made by several
defendants, in the event the evidence shall show the contract to have
been made with less than all those defendants by whom it is alleged to
have been made, this shall not be deemed either a variance or failure of
proof, but judgment maybe rendered against the party or parties shown
to be bound, and in favor of those shown not to be bound."]

In an action against two defendants, upon a contract alleged to have been made by
them, a judgment against one, upon proof that the contract was made by him only, was
held to be erroneous. Gossom v. Badgett, 6 Bush, 97.

But, in an action against A, upon a contract alleged to have been made by him, a
\ ■ judgment against him was sustained, though the evidence showed that the contract was

made by him and others. Waits v. McClure, 10 Bush, 763.

The amendment of March 24, 1888, seems to have been enacted in view of the decision
in Gossom v. Badgett.

§ 132 [159]. Atnending petition before answer. — The plaintiff may, at
any time before answer, amend his petition without leave ; but, unless the
amendment be filed five days before the term at which the defendant is
summoned to answer, he shall give to the defendant notice, of one day,
•of his intention to amend.

1. The plaintiff has a legal right, at any time before answer, to file an amended petition
[stating facts germain to the cause of action. Brown v. Vanclcai'e, 86 Ky., 385-86] ; and
the court has no judicial discretion to reject it. 4 Bush, 18.

2. If a petition be amended by leave of court and in the presence of the defendant,
notice is unnecessary. 79 Ky., 271.

3. Summons must be served on an amended petition which states a new cause of action
<io Bush, 96) ; although it be filed before the filing of an answer (8 Bush, 354) : a/iter t if
the amended petition do not state a new cause of action. Thus, in an action against has-
band and wife for her debt, created before marriage, it was held that no summons was
necessary upon an amended petition stating that they had been divorced, and asking for

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it her. 10 Bush, 544. And, in an action by A's administrator for

ion alleged that A's death was caused by the defendant's negligence ;

ion alleged that the death was caused by the defendant's "willful

, that no summons was necessary. 9 Bush, 728.

m against the defendant, as indorser of a bill of exchange, an amended

fiat he had wrongfully converted the bill to his own use, was held to be a

v cause of action (8 Bush, 193) ; and in that case it was said that, if A

te alleged to have been given for goods sold, and, the defendant appear-

e on the note, A should file an amended petition upon an account for

is would be a new cause of action.

as to amended petitions, notes to § 101, and notes (6) and (c) to § 134.

. Pleading upon overruling of demurrer. — Upon a demur-
uled, the party demurring may file an answer, reply, or

. General provisions as to amendments. — The court may,
1 furtherance of justice, and on such terms as may be
or permit a pleading or proceeding to be amended, by
ing out the name of party ; or, by correcting a mistake
f a party (a), or a mistake in any other respect; or, by

• allegations material to the case (6) ; or, if the amend-
lange substantially the claim or defence, by conforming
>r proceeding to the facts proved (r). And, if a pro-
by a party fail to conform in any respect to the provisions
he court may permit an amendment of such proceeding,

* it conformable thereto. And, if the allegations of a
> indefinite or uncertain that the precise nature of the
:e is not apparent, the court may require the pleading to
ite and certain by amendment (d). The court must, in
an action, disregard any error or defect in the proceed-
es not affect the substantial rights of the adverse party ;
:nt shall be reversed or affected by reason of such error

to J no, as to names of parties.

and notes, as to departure in pleading; § 113, subs. 4, and notes, as

adings ; and £ 386, and notes, as to giving judgment in favor of a party

*s entitle thereto, though there may have been a verdict against him.

ng pleadings to which demurrer is sustained, see \ 94.

of pleading generally.

no doubt that the circuit court may, even after .the trial of an equitable

ced, permit the pleadings to be amended, where it is apparent the jus-

luires it to be done." 15 B. M. t 377.

iature has wisely given to the trial court a broad discretion as to permit-
in order that it may arrive at the justice of a cause and act upon the
limitation upon this discretion is, that the amendment must be in

ice and must not change substantially the claim or defence. Ch'il Code,

sible to establish a general rule as to what shall constitute a sound or

Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 28 of 142)