and defend

SEC. 38. The only pleadings on the part of the plaintiff shall be By plaintiff the complaint, or demurrer to the defendant's answer; and the only ant pleadings on the part of the defendant shall be the demurrer, or the answer. The demurrer or answer of the defendant, and the demurrer of the plaintiff, shall be filed with the Clerk, and a copy served on the adverse party, or his attorney.

what to contain.

SEC. 39. The complaint shall contain: First-The title of the ac- Complaint, tion, specifying the name of the Court, and the name of the county in which the action is brought, and the names of the parties to the action, plaintiff and defendant. Second-A statement of the facts constituting the cause of action, in ordinary and concise language. Third-A demand of the relief which the plaintiff claims. If the recovery of money

or damages be demanded, the amount thereof shall be stated. SEC. 40. The defendant may demur to the complaint within the Demurrer. time required in the summons to answer, when it appears upon the face thereof, either: First-That the Court has no jurisdiction of the person of the defendant, or the subject of the action; or: SecondThat the plaintiff has not legal capacity to sue; or: Third-That there is another action pending between the same parties for the same cause; or Fourth-There is a defect or misjoinder of parties, plaintiff or defendant; or: Fifth-That several causes of action have been improperly united; or: Sixth-That the complaint does not state facts sufficient to constitute a cause of action. Seventh-That the complaint is ambiguous, unintelligible or uncertain.

SEC. 41. The demurrer shall distinctly specify the grounds upon Same. which any of the objections to the complaint are taken. Unless it do so it may be disregarded.

SEC. 42. The defendant may demur to the whole complaint, or Same. to one or more of several causes of action stated therein, and answer the residue; or may demur and answer at the same time. SEC. 43. If the complaint be amended, a copy of the amendment Amending complaint. shall be filed, or the Court may, in its discretion, require the complaint as amended to be filed, and a copy of the amendments shall be served upon every defendant to be affected thereby, or upon his attorney if he has appeared by attorney. The defendant shall answer in such time as may be ordered by the Court, and judgment by default may be entered upon failure to answer, as in other cases.

SEC. 44. When any of the matters enumerated in Section Forty Objections. do not appear upon the face of the complaint, the objection may be

taken by answer.

SEC. 45. If no such objection be taken, either by demurrer or an- Waiver of swer, the defendant shall be deemed to have waived the same, except- objections. ing only the objection to the jurisdiction of the Court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.

SEC. 46. The answer of the defendant shall contain: First-If the Answer, complaint be verified, a special [specific] denial to each allegation of the contain complaint, controverted by the defendant, or a denial thereof according to his information and belief; if the complaint be not verified, then a general denial to each of such allegations; but a general denial shall only put in issue the material and express allegations of the complaint. Second-A statement of any new matter or counter claim constituting a defense, in ordinary and concise language.

claim.

SEC. 47. The counter claim mentioned in the last section, shall be Counter one existing in favor of the defendant and against a plaintiff, between

Cross de

mands.

Several de

fenses may be set up.

Demurrer

to answer.

Pleadings to be sub

scribed, etc.

Verification when omit

ted.

Genuine

ten instru

whom a several judgment might be had in the action, and arising out of one of the following causes of action: First-A cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of 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. 48. 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 or death of the other, but the two demands be deemed compensation so far as they equal each other.

SEC. 49. The defendant may set forth by answer as many defenses and counter claims as he may have. They shall each be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer in a manner in which they may be intelligibly distinguished.

SEC. 50. The plaintiff may, within the number of days in which the defendant is by the summons required to answer, said days to be computed from the time of the service on the plaintiff of a copy of such answer, 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 of the defenses set up in the answer. Sham and irrelevant answers and defenses, and so much of any answer as may be irrelevant, redundant or immaterial may be stricken out on motion, and upon such terms as the Court, in its discretion, may impose.

SEC. 51. Every pleading shall be subscribed by the party or his attorney, and when the complaint is verified by affidavit, the answer shall be verified also, except as provided in the next section.

tion

SEC. 52. The verification of the answer required in the last Secmay be omitted when an admission of the truth of the complaint might subject the party to prosecution for felony.

SEC. 53. When an action is brought upon a written instrument, ness of writ- 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 be verified.

ment ad

mitted.

Same.

Manner of verifying pleadings.

SEC. 54. When the defense to an action is founded upon a written instrument, and a copy thereof is contained in the answer, or a copy is annexed thereto, the genuineness and due execution of such instrument shall be deemed admitted, unless the plaintiff file with the Clerk five days after the service of the answer an affidavit denying the same.

SEC. 55. In all cases of the verification of a pleading, the affidavit of the party shall state that the same is true of his own knowledge, except as to the matters which are therein stated on his information or belief, and as to those matters, that he believes it to be true. And where a pleading is verified, it shall be by the affidavit of the party, unless he be absent from the County where the attorneys reside, or from some cause unable to verify it, or the facts are within the knowledge of his attorney or other person verifying the same. When the pleading is verified by the attorney, or any other person except the party, he shall set forth in the affidavit the reasons why it is not made by the party. When a corporation is a party, the verification may be made by any officer thereof; or when the State, or any officer thereof in its behalf, is a party, the verification may be made by any person ac

quainted with the facts; except that in actions prosecuted by the Attorney-General in behalf of the State, the pleadings need not, in any case, be verified.

not be set

SEC. 56. It shall not be necessary for a party to set forth in a pleading Items of acthe items of an account therein alleged, but he shall deliver to the ad- count need verse party within five days after a demand thereof, in writing, a copy forth. of the account, or be precluded from giving evidence thereof. The Court, or a Judge thereof, may order a further account when the one delivered is too general or is defective in any particular.

matter.

SEC. 57. If irrelevant or redundant matter be inserted in a plead- Irrelevant ing, it may be stricken out by the Court on motion of any person aggrieved thereby.

real

proper

SEC. 58. In an action for the recovery of real property, such prop- Recovery of erty shall be described, with its metes and bounds, in the complaint, or with other equal certainty.

ty.

SEC. 59. In pleading a judgment or other determination of a Court, Judgment. 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.

per

SEC. 60. In pleading the performance of conditions precedent in a Conditions contract, it shall not be necessary to state the facts showing such precedent. formance; 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.

action for.

SEC. 61. In pleading a private statute, or a right derived therefrom, Private it shall be sufficient to refer to such statute by its title and the day of statutes. its passage, and the Court shall thereupon take judicial notice thereof. SEC. 62. In an action for libel or slander, it shall not be necessary to Libel or state in the complaint any extrinsic facts for the purpose of showing the slander, in application to the plaintiff of the defamatory matter out of which the 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. 63. In the actions mentioned in the last Section, the defendant Truth may may, in his answer, allege both the truth of the matter charged as de- be alleged. famatory, 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. 64. The plaintiff may unite several causes of action in the Several same complaint, when they all arise out of: First-Contracts express causes of or implied; or Second-Claims to recover specific real property, with one comor without damages, for the withholding thereof, or for waste committed plaint. thereon, and the rents and profits of the same; or: Third-Claims to recover specific personal property, with or without damages, for the withholding thereof; or: Fourth-Claims against a trustee, by virtue of a contract, or by operation of law; or: Fifth-Injuries to character; or: Sixth-Injuries to person; or: 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

Allegations when taken as true.

Material allegations.

Answer after demur

rer.

Amend

ment of

them, may be united with an action for either injury to character or to the person.

SEC. 65. Every material allegation of the complaint, when it is verified, not specifically controverted by the answer, shall for the purpose of the action be taken as true. The allegation of new matter in the answer, shall on the trial be deemed controverted by the adverse party.

SEC. 66. A material allegation in a pleading is one essential to the claim, or defense, and which could not be stricken from the pleading without leaving it insufficient.

SEC. 67. After demurrer, and before the trial of issue on demurrer, either party may, within ten days, amend any pleading demurred to, of course, and without costs, filing the same as amended, and serving a copy thereof upon the adverse party or his attorney, who shall have ten days to answer or demur thereto if the pleading be a complaint, or to demur thereto if it be an answer; but a party shall not so amend more than once. When a demurrer to a complaint is overruled and there is no answer filed, the Court may, upon such terms as shall be just, and upon payment of costs, allow the defendant to file an answer. If a demurrer to the answer be overruled, the facts alleged in the answer shall still be considered as denied.

SEC. 68. The Court may, in furtherance of justice, and on such pleadings. terms as may be proper, amend any pleading or proceedings 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 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 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, from any cause, the summons and a 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.

Time for answer.

Plaintiff ignorant of defendant's name.

Pleadings, how construed.

Error, when

to be disregarded.

SEC. 69. 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 pleading or proceeding may be amended accordingly. SEC. 70. In the construction of a pleading for the of purpose determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.

SEC. 71. 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.

CHAPTER 1-ARREST AND BAIL.

SEC. 72. No person shall be arrested in a civil action except as Arrest. prescribed by this Act.

SEC. 73. The defendant may be arrested, as hereinafter prescribed, When may in the following cases arising after the passage of this Act: First be made. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the State with intent to defraud his creditors, or when the action is for libel or slander. Second-In an action for a fine or penalty, 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 a fiduciary capacity, or for misconduct or neglect in office, or in a professional employment, or for a willful violation of duty. Third-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 Sheriff. Fourth— 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. Fifth-When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors.

SEC. 74. An order for the arrest of the defendant shall be obtained Order for, from a Judge of the Court in which the action is brought.

how obtained.

SEC. 75. The order may be made whenever it shall appear to the same. Judge, by the affidavit of the plaintiff or some other person, that a sufficient cause of action exists, and the case is one of those mentioned in Section seventy-three. The affidavit shall be either positive or upon information and belief; and when upon information and belief, it shall state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavit shall be filed with the Clerk of the Court.

taking.

SEC. 76. Before making the order the Judge shall require a writ- Plaintiff to ten undertaking, payable in gold coin of the United States, on the part give underof the plaintiff, with sureties, to the effect that if the defendant recover judgment the plaintiff will pay all costs and charges that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least five hundred dollars. Each of the sureties shall annex to the undertaking an affidavit that he is a resident and householder or freeholder within the State, and worth double the sum specified in the undertaking over and above all his debts and liabilities, exclusive of property exempt from execution. The undertaking shall be filed with the Clerk of the Court.

SEC. 77. The order may be made to accompany the summons, or When order any time afterwards before judgment. It shall require the Sheriff of made, form.

may be