Page:1862 Territory of Dakota Session Laws.pdf/87

70 the case may require. Allegations of value, or of amount of damage, shall not be considered as true, by failure to controvert them.

. 125. A material allegation in a pleading, is one essential to the claim or defence, which could not be stricken from the pleading, without leaving it insufficient.

. 126. Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in the pleading.

. 127. If an original pleading be lost, or withheld by any person, the court may allow a copy thereof to be substituted.

. 128. No variance between the allegation in 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 defence 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.

. 129. When the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, and may order an immediate amendment without costs.

. 130. When, however, the allegation of the claim or defence, 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.

. 131. 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.

. 132. 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