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the action. Second. In an action arising upon contract, any other cause of action arising also upon contract and existing at the commencement of the action.

Sec. 58. When cross demands have existed between persons under such circumstances that if one had brought an action against the other a counter claim could have been set up, neither shall be deprived of the benefit thereof by the assignment cr death of the other; but the two demands shall be deemed compensated so far as they equal each other.

Sec. 59. The defendant may set forth, by answer, as many defences and counter claims as he may have; they shall each be separately stated, and the several defences shall refer to the causes of action which they are intended to answer in a manner by which they may be intelligibly distinguished.

Sec. 60. When the answer contains new matter, constituting a defence, or a counter claim, or cross complaint, the plaintiff shall, within ten days (said days to be computed from the time of the service on the plaintiff of a copy of such answer), reply or demur to the same for insufficiency, stating in his demurrer the grounds thereof; and he may also, within the same time, demur to one or more defences set up in the answer; sham and irrelevant answers and defences, and so much of any answer as may be irrelevant, redundant, and immaterial, may be striken out on motion, and upon such terms as the court in its discretion may impose.

Sec. 61. Every pleading shall be subscribed by the party, or his attorney, and shall be verified by oath, except as provided in section sixty-three (of this act).

Sec. 62. When an action is brought upon a written instrument, and the complaint contains a copy of such instrument, or (a) copy is annexed thereto, the genuineness and due execution of such instrument shall be deemed admitted, unless the answer denying the same shall be verified.

Sec. 63. All complaints, answers, and replications shall be verified as provided in this section, except that when an admission of the truth of the allegation might subject the party to a prosecution for felony, or misdemeanor, or when the action is by the district attorney, in behalf of the territory or county, the verification may be omitted. The affidavit of verification shall state, that the facts stated in the pleading are true to the knowledge of the person making it, except as to those matters which are therein stated on his information and belief, and as to those matters, that he believes it to be true. Such verification shall be made by the party, or if there are several parties united in interest or pleading, by one at least of such parties acquainted with the facts, if such party is in the county and capable of making the affidavit. The verification may also be made by the agent or attorney of the party, if the party is absent from the county where the attorney

resides, or is from any other cause unable to verify the pleading, and in such case the verification shall state that the affiant is the agent or attorney of the party, and the reason why such verification is made by such agent or attorney, and that the facts stated in the pleading are true to the best knowledge, information, and belief of such agent or attorney.

When a corporation is a party, the verification may be made by any officer thereof, and shall state what officer he is and that the facts stated in the pleading are true to the best knowledge, information, and belief of such officer.

Sec. 64. It shall not be necessary for a party to set forth in a pleading the items of an account therein alleged; but he shall deliver to the adverse party within five days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court, or judge thereof, or a probate judge, may order a further account when the one delivered is too general, or is defective in any particular.

Sec. 65. If irrelevant or redundant matter be inserted in a pleading, it may be stricken out by the court on motion of any person aggrieved thereby.

Sec. 66. In an action for the recovery of real property, such property shall be described by legal sub-divisions, or by its metes and bounds in the complaint.

Sec. 67. In pleading a judgment, or other determination of a court, or officer of especial jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish on the trial the facts conferring jurisdiction.

Sec. 68. In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance; but it may be stated generally that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall establish on the trial the facts showing such performance.

Sec. 69. In pleading a private statute, or a right derived therefrom, it shall be 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. 70. In an action for libel or slander, it shall not be 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 cause of action arose; but it shall be sufficient to state generally that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff shall establish on the trial that it was so published or spoken.

Sec. 71. 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 circum

stances.

Sec. 72. The plaintiff may unite several causes of action in same complaint when they all arise out of: First. Contracts, express or implied. Second. Claims to recover specific real property, with or without damages, for the withholding thereof, or for waste committed thereon, and the rents and profits of the same. Third. Claims to recover specific personal property, with or without damages, for the withholding thereof. Fourth. Claims against a trustee by virtue of a contract, or by operation of law. Fifth. Injuries to character. Sixth. Injuries to person. Seventh. Injuries to property, but the causes of action so united shall all belong to only one of these classes; and shall affect all the parties to the action, and not require different places of trial, and shall be separately stated: Provided, however, That an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to person.

Sec. 73. Every material allegation of the complaint, or answer, not controverted by the answer, or replication thereto, shall, for the purposes of the action, be taken as true. The statement in the replication of matter in avoidance shall, on the trial, be deemed controverted by the adverse party.

Sec. 74. A material allegation in a pleading is one essential to the claim or defence, and which could not be stricken from the pleading without leaving it insufficient.

Sec. 75. After demurrer, and before the trial of the issue of law therein, the pleadings demurred to may be amended as of course, and without costs, by filing the same as amended, and serving a copy thereof on the adverse party or his attorney within ten days, who shall have ten days thereafter in which to demur or answer thereto; but a party shall not so amend more than once. A demurrer shall be deemed waived by the filing of an answer to the same cause of action at the same time of filing the demurrer, and when the demurrer to a complaint is overruled, and there is then no answer filed, the court may, upon terms, allow the answer to be filed.

If the demurrer to the answer be overruled, and there be no replication then filed, the court may, upon terms, allow a replication to be filed. When a demurrer to a replication is overruled, new matter in the replication shall be taken as denied. Where facts occurring subsequent to the commencement of the action render it proper, the same may be presented by supplemental

pleadings and issue taken thereon in the same manner as in the case of original pleadings.

Sec. 76. The court may, in furtherance of justice, and on such terms as may be proper, 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 an answer, replication, or demurrer, or demurrer to an answer filed. The court may likewise, upon affidavit, showing good cause therefor, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or proceeding in any other particulars; and may, upon like terms, allow an answer to be made after the time limited by this act; and may, upon such terms as may be just, and upon payment of costs, relieve a party or his legal representatives from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect; and when, for any cause satisfactory to the court, or the judge at chambers, the party aggrieved has been unable to apply for the relief sought, during the term at which such judgment, order, or proceeding complained of was taken, the court, or judge at chambers, in vacation, may grant the relief upon application made within a reasonable time, not exceeding five months after the adjournment of the term. When, from any cause, the summons and copy of the complaint in an action have not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant or his legal representatives, at any time within six months after the rendition of any judgment in such action, to answer to the merits of the original action.

Sec. 77. When the plaintiff is ignorant of the name of a defendant, such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered the pleadings or proceedings may be amended accordingly.

Sec. 78. In the construction of a pleading for the purpose of determining its effects, its allegations shall be liberally construed with a view to substantial justice between the parties.

Sec. 79. The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the parties; and no judgment shall be reversed or affected by reason of such error or defect.

TITLE V.

OF THE PROVISIONAL REMEDIES IN CIVIL ACTIONS.

Sec. 80.

CHAPTER I.

ARREST AND BAIL.

No person to be arrested except as prescribed by this act. Sec. 81. Cases in which defendant may be arrested. Sec. 82. Order for arrest-by whom made.

Sec. 83. Affidavit to obtain order-what to contain.

Sec. 84. Security by plaintiff before order of arrest.

Sec. 85. Order-when made and its form.

Sec. 86. Affidavit and order to be delivered to the sheriff and copy to defendant.

Sec. 87. Arrest-how made.

Sec. 88. Defendant to be discharged on bail or deposit.

Sec. 89. Bail-how given.

Sec. 90-91. Surrender of defendant.

Sec. 92. Bail-how proceeded against.

Sec. 93. Bail-how exonerated.

Sec. 94. Delivery of undertaking to plaintiff, and its acceptance or rejection by him.

Sec. 95. Notice of justification, new undertaking, if other bail. Sec. 96. Qualifications of bail.

Sec. 97. Justification of bail.

Sec. 98. Allowance of bail.

Sec. 99. Deposit of money with the sheriff.

Sec. 100. Payment of money in court by sheriff.

Sec. 101. Substituting bail for deposit.

Sec. 102. Money deposited-how applied or disposed of.

Sec. 103. Sheriff-when liable as bail, and his discharge from liability.

Sec. 104. Proceedings on judgment against sheriff.

Sec. 105. Motion to vacate order of arrest or reduce bail; affidavits on motion.

Sec. 106. When the order vacated or bail reduced.

Sec. 107. Person confined in jail to be discharged.

Sec. 108. Notice of application for discharge to be given to plaintiff.

Sec. 109. Notice-when served.

Sec. 110. Person to be brought before the judge.

Sec. 111. Oath to be administered by judge.

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