been improperly united; or, sixth, that the complaint does not state facts sufficient to constitute a cause of action; or, seventh, that the complaint is ambiguous, unintelligible, or uncertain.

Sec. 51. The demurrer shall distinctly specify the grounds upon which any of the objections to the complaint are taken; unless it do so, it may be disregarded.

Sec. 52. The defendant may demur to the whole complaint, or to one or more of several causes of action stated therein, and answer the residue, or may demur and answer at the same time. Provided, that a demurrer and answer shall in no case be filed at the same time to the same cause of action; but demurrers must be disposed of before any other pleading to the same cause of action. shall be filed.

Sec. 53. If the complaint be amended, a copy of the amendments 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. 54. When any of the matters enumerated in section fifty do not appear upon the face of the complaint, the objection may be taken by answer.

Sec. 55. If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waved 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.

Sec. 56. The answer of the defendant shall contain a specific denial to each allegation in the complaint intended to be controverted by the defendant, and may contain a statement of any matter in avoidance or a counter claim constituting a defence, or the subject matter of cross complaint which may entitle the defendant to relief against the plaintiff alone, or against a defendant, or co-defendants. In denying any allegation in the complaint, not presumptively within the knowledge of the defendant, it shall be sufficient to put such allegation in issue for the defendant to state that, as to any such allegation, he has not and cannot obtain sufficient knowledge or information upon which to base a belief.

Sec. 57. The counter claim mentioned in the last section shall be one existing in favor of the defendant or plaintiff, and against a plaintiff or defendant, between 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 or answer as the foundation of the plaintiff's claim or defendant's defence, 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. 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

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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 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.