Private statutes, how pleaded. Libel and slan Th complaint. by the provisions of section (giving the number of the seetion and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred. SEC. 329. In pleading a private statute, or a right derived therefrom, it is sufficient to refer to such statute by its title and the day of its passage, and the court shall thereupon take judicial notice thereof. SEC. 330. In an action for libel or slander, it is not der, how stated necessary to state in the complaint any extrinsic facts for the purpose of showing the application to the plaintiff of the defamatory matter out of which the action arose; but Not necessary to it is sufficient to state, generally, that the same was pub allege or prove special dam ages. Answer in such cases. lished, or spoken, concerning the plaintiff'; and if such allegation be controverted, the plaintiff must establish, on the trial, that it was so published or spoken. SEC. 331. In the actions mentioned in the last section, the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances to reduce the amount of damages; and, whether he prove the justification or not; he may give in evidence the mitigating circumstances. SEC. 332. Every material allegation of the complaint not controverted by the answer, must, for the purWhen to poses of the action, be taken as true; the statement of any Allegations not denied, when deemed to be true. be deemed con troverted. A material al new matter in the answer, in avoidance or constituting a defense or counter claim, must, on the trial, be deemed controverted by the opposite party. SEC. 333. A material allegation in a pleading is one legation defined. essential to the claim, or defense, and which could not be stricken from the pleading without leaving it insufficient. Supplemental complaint and answer. Pleadings to be SEC. 334. The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case, occurring after the former complaint or answer, but the making of a supplemental complaint or answer is not a waiver of the cause of action set up in the former complaint, or of the defense set up in the former answer. SEC. 335. All pleadings subsequent to the complaint filed and served. must be filed with the clerk and copies thereof served upon the adverse party, or his attorney. CHAPTER VIII. Variance, Mistakes in Pleadings, and Amendments. Variance, when SEC. 340. No variance between the allegations in a pleading and the proof is to be deemed material, unless it material. has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that a party has been so misled, the court may order the pleading to be amended, upon such terms as may be just. Immaterial vari SEC. 341. Where the variance is not material as provided in the last section, the court may direct the fact an e, how proto be found according to the evidence, or may order an im- vided for. mediate amendment without costs. deemed a vari ance. SEC. 342. Where, however, the allegation of the what not to be claim or defense 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. Amendments of SEC. 343. Any pleading may be amended once by the party of course, and without costs, at any time before course on effect answer or demurrer filed, or after demurrer, and before the of demurrer. trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, who may have ten days thereafter in which to answer or demur to the amended pleading. A demurrer is not waived by filing an answer at the same time; and when the demurrer to a complaint is overruled and there is no answer filed, the court may, upon such terms as may be just, allow an answer to be filed. If a demurrer to the answer be overruled, the facts alleged in the answer must be considered as denied to the extent mentioned in Section 332. SEC. 344. The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or Amendments on terms. Discretion and power of court. demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made and filed after the time limited by this Code; and may, also, upon such terms as may be just relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; and when, for any reason satisfactory to the court, or the judge thereof, the party aggrieved has failed to apply for the relief sought during the term at which such judgment, order, or proceeding complained of was taken, the court, or the judge thereof, in vacation, may grant the relief upon the application made within a reasonable time, not exceeding six months after the adjournment of the term. When, from any cause, the summons in an action has not been personally served on the defendant, the court may allow on such terms as may be just, such defendant or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action. When in an action to recover the possession of personal property, the person making any affidavit did not truly state the value of the property, and the officer taking the property, or the sureties on any bond or undertaking, is sued for taking the same, the officer or sureties may in their answers set up the true value of the property, and that the person in whose behalf said affidavit was made was entitled to the possession of the same when said affidavit was made, or that the value in the affidavit stated was inserted by mistake, the Affidavit may be court shall disregard the value as stated in the affidavit, and give judgment according to the right of possession of said property at the time the affidavit was made. disregarded. Suing a party by a fictitious name. No error or defect to be regarded unless it affects substan tial rights. SEC. 345. When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly. SEC. 346. The court must in every stage of an action disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect. SEC. 347. When a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order. Time to amend or answer de murrer. TITLE VII. OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS. SEC. 351. No person shall be arrested in a civil ac- No person to be tion except as prescribed in this Code. SEC. 352. The defendant may be arrested, as hereinafter prescribed, in the following cases: 1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, where the defendant is about to depart from the Territory with intent to defraud his creditors, or when the action is for willful injury to person, to character, or to property, knowing the property to belong to another; 2. In an action for a fine or penalty or for a breach of promise to marry, or for money or property embezzled, or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in fiduciary capacity; or for misconduct or neglect in office, or in a professional employment, or for a willful violation of duty; 3. In an action to recover the possession of personal property unjustly detained, when the property or any part thereof has been concealed, removed or disposed of, so that it cannot be found or taken by the marshal, sheriff, or other executive officer of the court; 4. When the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought; or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought; arrested except as prescribed in this Code Defendant, when subject to arrest. Order for arrest, 5. When the defendant has removed or disposed of his property, or is about to do so, with the intent to defraud his creditors. SEC. 353. An order for the arrest of the defendant by whom made. must be obtained from a judge of the court in which the action is brought. Affidavit for or der of arrest requisite. Undertaking re tiff. SEC. 354. The order may be made whenever it appears to the judge by the affidavit of the plaintiff or some other person, that a sufficient cause of action exists, and that the case is one of those mentioned in Section 352. The affidavit must be either positive or upon information and belief; and when upon information and belief, it must state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavit must be filed with the clerk of the court. SEC. 355. Before making the order, the judge must quired of plain- require a written undertaking on the part of the plaintiff, with sureties in an amount to be fixed by the judge, which must be at least five hundred dollars, to the effect that the plaintiff will pay all costs which may be adjudged to the defendant, and all damages which he may sustain by reason of the arrest, if the same be wrongful or without sufficient cause, not exceeding the sum specified in the undertaking. The undertaking must be filed with the clerk of the court. Order, when made, and its form. Affidavit and or der to be deliv. ered to the sheriff and copy to defend ant. Arrest, how made. Defendant to be discharged on SEC. 356. The order may be made at the time of the issuing of the summons, or any time afterwards, before judgment. It must require the officer to whom it is directed, forthwith to arrest the defendant and hold him to bail in a specified sum, and to return the order at a time therein mentioned to the clerk of the court in which the action is pending. SEC. 357. The order of arrest, with a copy of the affidavit upon which it is made, must be delivered to the officer, who, upon arresting the defendant, must deliver to him a copy of the affidavit, and also, if desired, a copy of the order of arrest. SEC. 358. The officer must execute the order by arresting the defendant and keeping him in custody until discharged by law. SEC. 359. The defendant, at any time before execubail or deposit, tion, must be discharged from the arrest either upon giving bail or upon depositing the amount mentioned in the order of arrest. Bail, how given. SEC. 360. The defendant may give bail by causing a written undertaking to be executed by two or more sufficient sureties, to the effect that they are bound in the |