Page:1862-63 Territory of Dakota Session Laws.pdf/179

 versary, or to any part thereof, that it is not sufficiently explicit to enable him to understand it, or that it contains no cause of action or defense, although it be taken as true. If the court deem the objection well founded, it must order the pleadings to be amended, and if the party refuse to amend, the defective pleading must be disregarded.

Sec. 35. A variance between the proof on the trial and the allegations in the pleadings, must be disregarded as immaterial, unless the court be satisfied that the adverse party has been biased to his prejudice thereby.

Sec. 36. The pleadings may be amended at any time before the trial, or during the trial, or upon appeal to supply any deficiency or ommission [sic] in the allegations or denial, necessary to support the action or defense, when, by such amendment substantial justice will be promoted. If the amendment be made after the issue, and it be made to appear to the satisfaction of the court that an adjournment is necessary to the adverse party, in consequence of such an amendment, an adjournment may be granted. The court may also, in its discretion, require as a condition for an amendment, the payment of costs to the adverse party, to be fixed by the court, not more than three dollars; but such payment cannot be required, unless an adjournment is made necessary by the amendment; nor can an amendment be allowed after a witness is sworn on a trial, when an adjournment will be made necessary.

Sec. 37. When the pleadings of the parties shall have taken place, the justice shall, upon the application of either party, if sufficient cause bo shown upon oath, adjourn the case for any time not exceeding thirty days; and upon an adjournment, all costs for the travel, attendance of witnesses, serving of subpenas, &c., shall be taxed in the same manner as if no actual trial had been had, upon the day originally fixed for the trial of the case.

Sec. 38. If it appear, on the trial of any cause before a justice of the peace, from the evidence of either party, that the title to lands is in question, which title shall be disputed by the other party, the justice shall immediately make an entry thereof, in his docket, and cease all further proceeding in the cause, and shall certify and return to the district court of