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trial, and must be separately stated; but 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 the person.

CHAPTER III.

DEMURRER TO THE COMPLAINT.

SECTION 430. When defendant may demur.

431. Demurrer must specify, etc. May be taken to part.
May answer and demur at same time.

432. What proceedings are to be had when complaint is

amended.

433. Objection not appearing on complaint, may be taken by

answer.

434. Objections, when deemed waived.

430. (§ 40.) The defendant may demur to the complaint within the time required in the summons to answer, when it appears upon the face thereof, either:

1. That the Court has no jurisdiction of the person of the defendant or the subject of the action; or, 2. That the plaintiff has not legal capacity to sue;

or,

3. That there is another action pending between the same parties for the same cause; or,

4. That there is a defect or misjoinder of parties plaintiff or defendant; or,

5. That several causes of action have been improperly united; or,

6. That the complaint does not state facts sufficient to constitute a cause of action; or,

7. That the complaint is ambiguous, unintelligible, or uncertain.

When
may demur

defendant

Demurrer

must

431.

(§§ 41, 42.) (S$ 41, 42.) The demurrer must distinctly specify, etc. specify the grounds upon which any of the objections to the complaint are taken. Unless it do so it may be disregarded. It may be taken to the whole complaint answer and or to any of the causes of action stated therein, or the same time. defendant may demur and answer at the same time.

May be taken to

part.

May

demur at

What proceedings

are to be had when complaint

is amended

Objection not appearing on complaint, may be taken by

answer.

Objections, when deemed waived.

432. (§ 43.) If the complaint is amended, a copy of the amendments must be filed, or the Court may, in its discretion, require the complaint, as amended, to be filed, and a copy of the amendments to be served upon the defendants affected thereby. The defendant must answer the complaint, as amended, within such time as the Court may direct, and judgment by default may be entered upon failure to answer, as in other

cases.

433. ($44.) When any of the matters enumerated in Section 430 do not appear upon the face of the complaint, the objection may be taken by answer.

434. (§ 45.) If no objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same, excepting 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.

CHAPTER IV.

THE ANSWER.

SECTION 437. Answer, what to contain.

438. When counter claim may be set up.

439. When defendant omits to set up counter claim.
440. Counter claim not barred by death or assignment.
441. Answer may contain several grounds of defense. De-
fendant may answer part and demur to part of com-
plaint.

437. The answer of the defendant shall contain:

Answer, what to

1. If the complaint be verified, a specific denial to contain. each allegation of the 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 said allegations; but a general denial only puts in issue the material allegations of the complaint;

2. A statement of any new matter in avoidance, or constituting a defense or counter claim.

438. (§ 47.) The counter claim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action:

1. 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;

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

When

counter

claim to be

set up.

defendant

439. If the defendant omit to set up a counter When claim in the cases mentioned in the first subdivision omits to set ur counter of the last section, neither he nor his assignee can claim. afterwards maintain an action against the plaintiff therefor.

440. (§ 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 can be deprived of the benefit thereof by the assignment or death of the other; but the two demands must be deemed compensated so far as they equal each other. But a claim existing in favor of the maker of a negotiable instru

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Answer

may

contain

several grounds of defense.

ment and against a holder after maturity, intermediate between the payee and the last holder, is not a cross demand.

441. (§ 49.) The defendant may set forth by answer as many defenses and counter claims as he may have. They must be separately stated, and the several defenses must refer to the causes of action which they are intended to answer, in a manner by which Defendant they may be intelligibly distinguished. The defendant may also answer one or more of the several causes of action stated in the complaint and demur to the residue.

may

answer

part and

demur to part of

complaint.

When plaintiff

to answer.

CHAPTER V.

DEMURRER TO ANSWER.

SECTION 443. When plaintiff may demur to answer.

444. Grounds of demurrer.

443. (§ 50.) The plaintiff may, within the same

may demur length of time after service of the answer as the defendant is allowed to answer after service of summons, demur to the answer of the defendant.

Grounds of demurrer.

444. The demurrer may be taken upon one or more of the following grounds:

1. That several causes of counter claim have been improperly joined;

2. That the answer does not state, facts sufficient to constitute a defense or counter claim;

3. That the answer is ambiguous, unintelligible, or uncertain.

CHAPTER VI.

VERIFICATION OF PLEADINGS.

SECTION 446. Verification of pleadings.

447. Copy of written instrument contained in complaint ad-
mitted, unless answer is verified.

448. When defense is founded on written instrument set out
in answer, its execution admitted, unless denied by
plaintiff under oath.

449. Exceptions to rules prescribed by two preceding sec

tions.

tion of

446. (§§ 51, 52, 55.) Every pleading must be sub- Verificascribed by the party or his attorney; and when the pleadings. complaint is verified, or when the State, or any officer of the State, in his official capacity, is plaintiff, the answer must be verified, unless an admission of the truth of the complaint might subject the party to a criminal prosecution, or unless an officer of the State, in his official capacity, is defendant. In all cases of a verification of a pleading, the affidavit of the party must 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 must be by the affidavit of a party, unless the parties are absent from the county where the attorney resides, 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 one of the parties, he must set forth in the affidavit the reasons why it is not made by one of the parties. When a corporation is a party, the verification may be made by any officer thereof.

Copy of

written instrument contained

in

complaint

447. ($53.) When an action is brought upon a written instrument, and the complaint contains a copy admitted, of such instrument, or a copy is annexed thereto, the

unless

answer is

verified.

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