of, and it in like manner appears that a cause of action exists_TITLE 3. against the defendant, or that he is a proper party to an action relating to real property in this territory, such court or judge may grant an order that the service be made by publication of a summons in either of the following cases: 1. When the defendant is a foreign corporation, and has property within the territory, or the cause of action arose therein; 2. When the defendant, being a resident of this territory, has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or shall keep himself concealed therein with the like intent; 3. When the defendant is not a resident of the territory, but has property therein, and the action arises on contract, and the court has jurisdiction of the subject of the action; 4. When the action is for divorce, in the cases prescribed by law. how made. SEC. 31. The order shall direct the publication to be made in Publication, a newspaper published in the county where the action is brought, and if there be no newspaper published in the county, then in a newspaper to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for six weeks; or in case the defendant be absent from, or residing out of this territory, not less than once a week for three months. In case of publication, the court or judge shall also direct a copy of the summons and complaint to be forthwith deposited in the post office, directed to the defendant at his place of residence, unless it shall appear that such residence is not known to the party making the application. When publication is ordered, personal service of a copy of the summons and complaint, out of the territory, shall be equivalent to publication and deposit in the post office. In either case, the service of the summons shall be deemed complete at the expiration of the time prescribed in the order for publication. rights SEC. 32. The defendant against whom publication is ordered, or Defendant's his representatives, on application and sufficient cause shown, at such cases. any time before judgment, shall be allowed to defend the action; and, except in an action for divorce, the defendant against whom publication is ordered, or his representatives, may, in like manner, upon good cause shown, be allowed to defend after judgment and within one year after the rendition of such judgment, on such terms as may be just; and if the defence be successful, and the judgment or any part thereof have been collected or otherwise enforced, such restitution may thereupon be compelled as the court shall direct. in cond, &c., SEC. 33. Whenever it shall appear by the return of the sheriff, When clerk his deputy, or the person appointed to serve a summons, that he to issue sehas not served it upon the defendants as prescribed in the twenty- summons. ninth section, the clerk shall, at the request of the plaintiff, issue another summons, and so on until service be had; or the plaintiff may proceed by publication in the manner before stated, at his election. SEC. 34. When the action is against two or more defendants, and TITLE 4. the summons is served on one or more, but not all of them, the where there defendants, are several 1. If the action be against defendants jointly indebted upon a art contract, he may proceed against the defendants served, unless the only served. court otherwise direct; and if he recover judgment, it may be en and Proof of ser vice. 2 Hill, 862. When juris tered against all the defendants thus jointly indebted, so far only as 2. If the action be against the defendants severally liable, he may SEC. 35. Proof of the service of the summons and complaint shall be as follows: 1. If served by the sheriff or his deputy, the certificate of such sheriff or deputy; or 2. If by any other person, his affiadavit thereof; or 3. In case of publication, the affidavit of the printer or his foreman, or his principal clerk, showing the same; and an affidavit of a deposit of a copy of the summons and complaint in the post office, if the same shall have been deposited; or 4. The written admission of the defendant. In case of service, otherwise than by publication, the certificate, affidavit or admission must state the time and place of service. SEC. 36. From the time of the service of the summons and comdiction of ac- plaint in an action at law, the court shall be deemed to have action acquired quired jurisdiction, and to have control of all the subsequent proceedings. A voluntary appearance of the defendant shall be equivalent to personal service of the summons upon him. Forms of pleading inconsistent TITLE IV. Of the Pleadings in Actions of Law. SEC. 37. Forms of pleading inconsistent with this act abolished. SEC. 37. All the forms of pleading heretofore existing in actions at law, inconsistent with the provisions of this act, are abolished; with this act and hereafter the forms of pleading, and the rules by which the 7 Barb. 80; sufficiency of the pleadings is to be determined, shall be those pre800. scribed by statute. abolished. 8 Barb. 103, Pleadings; names of SEC. 38. The only pleadings on the part of the plaintiff shall be: 1. The complaint; 2. The demurrer; or 3. The reply. And on part of the defendant: 1. The demurrer; or 2. The answer. TITLE V. The Complaint. SEC. 39. First pleading to be complaint. 40. Complaint, what to contain. TITLE 5, 6. SEC. 39. The first pleading on the part of the plaintiff, shall be First pleadthe complaint. SEC. 40. The complaint shall contain: ing to be complaint. Complaint, what 1. The title of the cause, specifying the name of the court, and tain to conthe name of the county in which the action is brought, and the 4 Coms. 253. names of the parties to the action, plaintiff and defendant." 2. A plain and concise statement of the facts constituting the 2 Coms. 182; cause of action, without unnecessary repetition. 7 Barb. 204: 8 Barb. 217, 570; 8 Sanf 3. A demand of the relief which the plaintiff claims. If the re- 695, 736. covery of moncy, or damages be demanded, the amount thereof shall be stated. TITLE VI. The Demurrer. SEC. 41. When defendant may demur. 42. Demurrer must specify ground of objection to complaint. 44. Objection, when taken by answer. 45. Objection, when deemed waived. SEC. 41. The defendant may demur to the complaint within time required in the summons to answer, when it appears upon face thereof, either: the When dethe demur. 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 fendant may 8 How. 177. 5 Sanf. 830 1 Seld. 857 4. That there is a defect of parties, plaintiff or defendant; or 5. That several causes of action have been improperly united; or 7 How. 4: 6. That the complaint does not state facts sufficient to constitute a cause of action. 7 Barb. 204. Demurrer must specify SEC. 42. The demurrer shall distinctly specify the grounds of objection to the complaint; unless it does so it may be disregarded. grounds It may be taken to the whole complaint, or to any of the alleged complaint. causes of action stated therein. of objection to 7 Barb. 204; 1 Seld. 857. ceed if com be SEC. 43. If the complaint be amended, a copy thereof shall be How to proserved on the defendant or his attorney of record, and the defend- plaint ant shall answer the same within such time as may amended. be prescribed by the court, and if he omit to do so, the plaintiff may proceed to obtain judgment as in other cases of failure to answer. when taken SEC. 44. When any of the matters enumerated in section forty- Objection, one do not appear upon the face of the complaint, the objection by answer. be taken by answer. may SEC. 45. If no objection be taken, either by demurrer or answer, Objection, the defendant shall be deemed to have waived the same, excepting ed waived. when deem TITLE 7, 8. only the objection to the jurisdiction of the court, and the objection 6 Barb. 564; that the complaint does not state facts sufficient to constitute a cause of action. 7 Barb. 581. Answer, what to contain. 3 Paige, 210; 8 Barb. 189; Ib. 250; TITLE VII. The Answer. SEC. 46. Answer, what to contain. 47. May set forth as many grounds of defence as exist. 48. Demurrer as to some causes of action, and action as to others. 49. Sham defences to be stricken out. SEC. 46. The answer of the defendant shall contain: 1. A specific denial of each material allegation of the complaint controverted by the defendant, according to his knowledge, infor3 Sanf. 785 mation or belief, or of any knowledge or information thereof suffi14 Barb. 533. cient to form a belief. 8 How. 193; Different de- Demurrer to some causes answer as to 2. A plain and concise statement of any new matter constituting a defence or set-off, without unnecessary repetition. SEC. 47. The defendant may set forth by answer as many de7fences as he may have. They shall each be separately stated, and refer to the causes of action which they are intended to answer, in any manner by which they may be intelligibly distinguished. SEC. 48. The defendant may demur to one or more of several of action and causes of actions stated in the complaint, and answer the residue. others. SEC. 49. Sham and irrelevant answers and defences may be Sham defen- stricken out on motion, and upon such terms as the court may, in stricken out, its discretion, impose. ces to be 1 Hill, 672: 4 Sanf. 660; 3 Reply, what Barb. 144; 8 How. 9. SEC. 50. When the answer contains new matter constituting a to contain. 6 defence or set-off, the plaintiff may, within one day or such further Barb. 124; 8 time as the court may allow, reply to such new matter, denying specifically each allegation controverted by him according to his knowledge, information or belief, or any knowledge or information thereof sufficient to form a belief, and he may allege, in a plain and concise manner, without unnecessary repetition, any new matter, not inconsistent with the complaint, constituting a defence to such new matter in the answer; or he may demur to the same for insufficiency, stating in his demurrer the grounds thereof; and the plaintiff may demur to one or more of several defences or set-offs in the answer, and reply to the residue. When defendant may SEC. 51. If the answer contain a statement of new matter consti for tuting a defence, and the plaintiff fails to reply or demur thereto judgment on within the time prescribed, the defendant may move in court for move answer. such judgment as he shall be entitled to upon such statement, and_TITLE 9. if the case require it, a writ of inquiry of damages may be issued. reply. SEC. 52. If a reply of the plaintiff to any defence set up by the Demurrer to answer of the defendant be insufficient, the defendant may demur thereto, and shall state the grounds thereof. TITLE IX. General Rules of Pleading. SEC. 53. No pleading but complaint, answer, reply and demurrers. 54. Verification of pleadings. 55. How to state an account in pleadings. 56. Pleadings to be construed liberally. 57. Irrelevant and redundant matter to be stricken out. 58. Judgments, how to be pleaded. 59. Conditions precedent, how to be pleaded. 60. Private statutes, how to be pleaded. 61. Libel and slander, how stated in complaint. 62. Answer in such cases. 63. Answer in actions to recover property distrained. 64. When several causes of action may be united in same complaint. 65 Allegation not denied; when to be deemed true. 66. Nature of a material allegation. SEC. 53. Every pleading shall be subscribed by the party or his Pleadings. attorney, and, except a demurrer, shall also be verified by affidavit, as set forth in the next section. SEC. 54. The verification shall be to the effect that the same is Verification of pleadings. true to the knowledge of the person making it, except as to matters stated on information and belief, and as to those matters that he believes it to be true. The affidavit shall be made by the party, or 2 Sanf. 647. if there be several parties united in interest, and pleading together, by one of such parties if he be within the county in which the action is brought, and capable of making the affidavit, unless the action or defence be founded upon a written instrument for the payment of money only, and such instrument be in the possession of the agent or attorney, or if all the material allegations of the pleading be within the personal knowledge of the agent or attorney, in which case the affidavit may also be made by such agent or attorney. If the party pleading shall not be within the county in which the action is brought, such pleading may be verified by the party, his agent or attorney, or by any person having a knowledge of the facts, and when the affidavit shall be made by any other person than the party, he shall set forth in it his knowledge, or the grounds of his belief on the subject, and the reason why it is not made by the party. When a corporation is a party, the verification may be made by any officer thereof, and when the territory, or any officer thereof in its behalf, is a party, the verification may be made by any person acquainted with the facts. The verification may be omitted, when an admission of the truth of the allegations might subject the party to prosecution for felony. And no pleading shall be used in a criminal prosecution against the party, as proof of a fact admitted or alleged in such pleading. how stated. SEC. 55. It shall not be necessary for a party to set forth in a Account; pleading, a copy of the instrument of writing, or the items of an |