Suits, commenced by filing declara Pleadings and practice as at com § 2969. All suits at law in the district courts shall be commenced by filing a declaration in the office of the clerk of the tion. court, and the pleadings and practice shall be according to the forms and rules of the common law and all suits in equity mon law. shall be commenced by filing a bill in the office of the clerk of the court. § 2970. When any matter is pleaded by either party, at any stage of the cause, within the time of pleading, it shall be the duty of the court, before the same is submitted to the jury, to consider and determine upon the sufficiency of the matter, whether excepted or not. § 2971. No want of form shall be sufficient cause for abating any matter pleaded, provided the court can see in it sufficient matter upon which to base a decree or judgment; and when legal exceptions are sustained, the opposite party shall have leave to amend. Seligman vs. Armijo, vol. 1, page 459. N. M. Rep. § 2972. Each party, by leave of the court, shall have leave to amend, upon such terms as the court may think proper, at any time before verdict, judgment or decree. Beall vs. Territory, vol. 1, page 507, N. M. Rep. L. 1878, chap. 4. § 1; Feb. 15. Pleadings, sufficiency of, court shall determine. C. L. 1865. chap. 27, 24 July 12, 1851. Form not material. Id. § 26. Amendments al towed before de cree. Id. § 27. Pleasin abatement § 2973. All pleas in abatement, except pleas to the juris under oath. diction as to the subject, shall be under oath. Geck vs. Shepherd, vol. 1. page 346, N. M. Rep. Id. § 28. May setup further matter in defense. § 2974. Hereafter, whenever any judgment may be rendered in any of the courts of this territory on any plea in abatement, and such judgment shall be against the said plea or the matters therein pleaded, or such plea shall be amended or not sustained, the judgment of the court shall give the party interposing such plea in abatement leave to plead over and set up any further matter of defense which might have been pleaded or set up if such plea in abatement had not been Feb. 21. interposed. $2975. The order of pleading shall be as follows, that is to say: First, legal exceptions: second, pleas in abatement: 1st, to the jurisdiction as to the subject matter; 2nd, as to local jurisdictions: 3rd, as to the disability or misnomer of the C. 59, L. 87 § 1: Pleading, order of. C. L. 1865, chap. 27. person, either the plaintiff or the defendant; third, answer in bar of the action. $29: July 12 1851. of. Signature. denial Id. $ 30. Execution of contract. to be denied under oath. Id. § 31. Pleas of all mat ters pertinent admissible. Id. § 32. Pleading, extention of time. Id. § 45. Reconvention and set-off. Id. § 33. Action by assignee without prejudice. C. 6, L. 80, § 1: Feb. 12. Pleas of set-off. Action founded on contract. Action arising out of contracts. Id. § 11. Filing necessary. Donalson vs. San Miguel County, vol. 1, page 263. N. M. Rep. § 2976. When any party to a suit, either as principal or security, or indorser, founded on any written contract, covenant or agreement whatsoever, shall deny his signature, he shall do the same under oath. § 2977. In all cases where a suit has been instituted upon any writing obligatory, or may be so instituted, the execution of the instrument shall be regarded as proved, and the plea of non est factum shall be regarded as unavailing, until the person filing such plea shall have made oath that he never executed the said instrument, nor authorized any person to execute it for him. Luna et al. vs. Mohr, vol. 1, page 673, W. C. Rep. § 2978. Each party may plead as many matters as he may think proper, provided that they are pertinent to the cause. 2979. Upon good cause, supported by oath, the court may extend the time of pleading. § 2980. Each party may plead any matter arising out of the same transaction in reconvention and set-off. § 2981. In case of the assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off, counter claim or other cause of action or defense, whether matured or not, if matured when pleaded, existing in favor of ` the defendant against the assignor, before notice of the assignment; but this shall not apply to negotiable instruments transferred in good faith, and upon valuable consideration before maturity. § 2982. A defendant may plead as a set-off or counter claim, any of the following matters, and may recover judg. ment thereon if proved, for any excess thereof over the plaintiff's demand as proved: First. When the action is founded on contract, a cause of action also arising on contract, or ascertained by the decision of a court; or Second. A cause of action in favor of the defendants, or some of them against the plaintiffs, or some one of them, arising out of the contracts or transactions set forth in the declaration or connected with the subject of the action. U. S. vs. Howland. vol. 1. page 550, N. M. Rep. Staab et al. vs. Ortiz, vol. 1. page 516. W. C. Rep. When any instrument of writing upon which the action or defense is founded is referred to in the pleadings, the original or a copy thereof shall be filed with the pleading, if within the power or control of the party wishing to use the same, and if such original or a copy thereof be not filed as herein required, or a sufficient reason given for failure to do L. 1882. chap. 4. so, such instrument of writing shall not be admitted in evidence upon the trial. Evidence not admissible as, when. 3: March 1. Written instrument admitted in pleading, when. § 2984. When a written instrument is referred to in a pleading, and the same or a copy thereof is incorporated in, or attached to such pleading, the genuineness and due execution of such written instrument and of every indorsement thereon shall be deemed admitted, unless in a pleading or writing filed in the cause within the time allowed for pleading, the same be denied under oath: Provided, That if the party desiring to controvert the same is, upon reasonable demand, refused an inspection of such instrument, the execution thereof shall not be deemed admitted by failure to deny the same under oath. Such demand must be in writing filed in the cause, and served upon the opposite party or his attorney: Provided, That the provisions of this section shall not apply to deeds of conveyance of real estate. C. 4, L. 82. § +: March 1. Proviso. Continuance, how to be granted. § 2985. A continuance shall not be granted for any cause growing out of the fault or negligence of the party applying therefor; but, subject to this rule, it may be allowed for any cause which satisfies the court that substantial justice will 15: Feb. 12. thereby be more nearly obtained. L. 1880. chap. 6. § Continuance, motious to be founded § 2986. Motions for continuance on account of the absence of evidence must be founded on the affidavit of the on amdavit. party, his agent or attorney, and must state: First. The name and residence of such witness, or if that be not known, a sufficient reason why not known; and also, in either case, facts showing reasonable grounds of belief that his attendance or testimony will be procured at the next term. Second. Efforts, constituting due diligence, which have been used to obtain such witness or his testimony. Third. What particular facts, as distinguished from legal Affidavits, statement of. Feb. 12. ~ C. 6. I. 80, § 16: conclusions, the affiant believes the witness will prove, and that the affiant believes them to be true, and that he knows of no other witness by whom such facts can be fully proved. Thomas vs. McCormick, vol. 1, page 369, N. M. Rep. Waldo vs. Beckwith, vol. 1, page 182, N. M. Rep. § 2987. If the application for continuance is insufficient it shall be overruled; if held sufficient the cause shall be continued, unless the opposite party will admit that the witness, if present, would testify to the facts therein stated, in which event the cause shall not be continued, but the party may read as evidence of such witness the facts held by the court to be properly stated. § 2988. The motion for continuance must be filed on the second day of the term, if it is then certain that it will have to be made before the trial, and as soon thereafter as it becomes certain that it will so need to be made, and shall not be allowed to be made when the cause is called for trial, except for cause which could not, by reasonable diligence, have been before that time discovered; and if made after the second day of the term, the affidavit must state facts constituting an excuse for the delay in making it. If time is taken when the case is called to make such motion, the motion shall be made and determined as soon as the court opens after the next ordinary adjournment. § 2989. The application for continuance shall be amended but once, except to supply a clerical error, by permission. The adverse party may at once, or within such reasonable time as the court shall allow, file written objections to such motion, stating wherein he claims that the same is insufficient. If the continuance is granted the party applying therefor shall pay the costs of the term. § 2990. In trials by jury, when the jury has been sworn, the court shall proceed in the following order: First. The party on whom rests the burden of proof may state his claim and the evidence by which he expects to sustain it, and shall then produce his evidence. Second. The other party may then state his defense and the evidence by which he expects to sustain it, and must then produce his evidence. Third. The parties will then be confined to rebutting evidence, unless the court, for good reason, in furtherance of justice, permits them to offer evidence in their original case. Fourth. But one counsel on each side shall examine the same witness and open interlocutory questions. The party moving the court or objecting to testimony shall be heard first; the respondent may then reply and the mover rejoin, confining his remarks to the points first stated and a pertinent answer to respondent's argument. Debate on the question shall then be closed unless the court request further argument. Fifth. The parties may then either submit or argue the case to the jury. In the argument the party having the burden of the issue shall have the opening and closing, but shall disclose in the opening all the points relied on in the cause, and if in the close he should refer to any new material point or fact not relied upon in the opening, the adverse party shall have the right to reply thereto, which reply shall close the argument in the case. Sixth. If the party holding the affirmative waive the opening, he shall be limited in the close simply to a reply to his adversary's argument, otherwise the other party shall have the concluding argument. NOTE Chapter four. section seven. of the laws of 1882, makes the above C. 6. L. 80. § 20; Feb. 12. Hearing without jury to be held, when § 2991. Any hearing of any kind, whether interlocutory or final, unless trial by jury is necessary, may be had in any and how. case out of regular term time, upon five days' notice in writing to the opposite party or his attorney or solicitor. Such hearing may be had during a term of court, at any time within the discretion of the court. $ 2992. Upon the trial of any case either civil or criminal in the district courts held within and for the various counties of the territory, all instructions to the jury asked by either party, whether given or refused, shall be in writing, and all instructions given by the court at the request of either party or upon its own motion, shall be in writing; and it is hereby made the duty of the court in all cases, whether civil or criminal. to instruct the jury as to the law of the case, and a failure or refusal so to do shall be sufficient ground for a reversal of the judgment by the supreme court upon appeal or writ of error: Provided, however, That the parties to the suit or their attorneys may waive upon the record the instructions in writing. C. 66. L. 91, § 6: Feb. 26. Instructions to jury shall be in writing unless waived. L. 1884. chap. 8. § 1: April 3. Special findings. § 2993. In all trials by jury in the district courts, the court shall at the request of the parties, or either of them, or their counsel, in addition to the general verdict, direct the jury to find upon particular questions or fact, to be stated in writing by the party or parties requesting the same. When the special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court 2: Feb. 12. shall give judgment accordingly. Special finding to control, when. C. 45, L. 89, § 1 and Instructions, limi tations. § 2994. Before the argument is concluded either party Herrera vs. Chavez et al. vol. 2, page 86, N. M. Rep. § 2995. If the court refuse a written instruction, as demanded, but gives the same with a modification, which the court may do, such modification shall not be by interlineation or erasure, but shall be well defined, and shall follow some such characterizing words as, Changed thus, which words shall themselves indicate that the same was refused as demanded. § 2996. The court must read to the jury all the instructions it intends to give and none others, and must announce them as given, and shall announce as refused, without reading of. L. 80. chap. 6, § 23; Instructions; form Id. § 24. Instructions. to be given or refused. |