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and answer as to others. Sham defences to be
§ 151. The defendant may demur to one or more of several Demurrer as causes of action stated in the complaint, and answer the residue. ses of action.
$ 152. Sham answers and defences may be stricken out on motion.
stricken out. CHAPTER IV.
154. When defendant may move for judgment upon an answer.
155. Demurrer to reply. $ 153. When the answer shall contain new matter, the plaintiff Reply, when may within twenty days, reply to it, denying generally or parti- tombe pharing cularly each allegation controverted by him, or any knowledge contain. or information thereof sufficient to form a belief; and he may lege, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended, any new matter not inconsistent with the complaint, in avoidance of the answer; or of any defence set up therein ; 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 set up in the answer and reply to the residue.
$ 154. If the answer contain a statement of new matter con- When destituting a defence, and the plaintiff fail to reply or demur thereto fendant may within the time prescribed by law, the defendant may move on a judgment notice of not less than ten days for such judgment, as he is entitled upon an anto upon such statement, and if the case require it, a writ of inquiry of damages may be issued.
$ 155. 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 reply. thereto, and shall state the grounds thereof.
General Rules of Pleading.
157. Verification of pleadings.
need not set forth title.
No pleading $ 156. No other pleading shall be allowed than the complaint, plaint, an;
swer, reply answer, reply and demurrers.
Verification $ 157. Every pleading in a court of record must be subscribed
by the party or his attorney, and when any pleading in a case
recovery of real property, the pleadings need not be verified.
to the adverse party, within ten days, after a demand thereof in
particular bill. Pleadings to
$ 159. In the construction of a pleading, for the purpose of debe liberadly termining its effect, its allegations shall be liberally construed,
with a view to substantial justice between the parties.
finite or uncertain that the precise nature of the charge or de-
made definite and certain, by amendment.
court, or officer of special jurisdiction, it shall not be necessary to
to establish on the trial, the facts conferring jurisdiction.
a contract, it shall not be necessary to state the facts, showing pleaded. such performance; but it may be stated generally, that the party
duly performed all the conditions on his part; and if such alle-
how to be
tutes how to
not set forth title.
§ 163. In pleading a private statute, or a right derived there- Private stafrom, it shall be sufficient to refer to such statute, by its title and
be pleaded. the day of its passage, and the court shall thereupon take judicial notice thereof.
$ 164. In an action for libel or slander, it shall not be neces- I.ibel and sary to state in the complaint, any extrinsic facts, for the purpose stated in of showing the application to the plaintiff, of the defamatory mat- complaint, ter 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 be bound to establish, on trial, that it was so published or spoken.
$ 165. In the actions mentioned in the last section, the defendant Answer in 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 circumstances.
$ 166. In action to recover the possession of property distrain- In actions to ed doing damage, an answer that the defendant or person by perty dis. whose command he acted was lawfully possessed of the real pro- danego on perty upon which the distress was made, and that the property swer need distrained was at the time doing damage thereon, shall be good, without setting forth the title to such real property.
$ 167. The plaintiff may unite several causes of action in the What cau.. same complaint, where they all arise out of,
may be join
ed in the 1. Contract, express or implied ; or,
same action. 2. Injuries with or without force, to the person; or, 3. Injuries with or without force, to property; or, 4. Injuries to character; or,
5. Claims to recover real property, with or without damages, for withholding thereof, and the rents and profits of the same; or,
6. Claims to recover personal property, with or without damages, for the withholding thereof; or,
7. Claims against a trustee by virtue of a contract or by operation of law.
But the causes of action, so united, must all belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated. Allegation
$ 168. Every material allegation of the complaint, not speci- not denied; fically controverted by the answer, as prescribed in section one deemed true. hundred and forty-nine ; and every material allegation of new matter in the answer, not specifically controverted by the reply, as prescribed in section one hundred and fifty-three, shall for the purposes of the action, be taken as true. But the allegation of new matter in a reply, shall not in any respect conclude the defendant, who may on the trial countervail it by proofs, either in direct denial or by way of avoidance.
ses of action
170. Immaterial variances, how provided for.
177. Supplemental complaint, answer and reply. Material va
$ 169. No variance between the allegation in a pleading and riances, how the proof, shall be deemed material, unless it have actually misprovided for. led the adverse party, to his prejudice, in maintaining his action
or defence, upon the merits. "Whenever it shall be alleged, that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended,
upon such terms as shall be just. Immaterial $ 170. Where the variance is not material, as provided in the variances, how provi- last section, the court may direct the fact to be found according ded for. to the evidence, or may order an immediate amendment, without
costs. What to be 8 171. Where, however, the allegation of the cause of action deemed a variance. or defence to which the proof is directed is unproved, not in some
particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, within the last two
sections, but a failure of proof. Amend.
§ 172. Any pleading may be once amended by the party of ments of course, course, without costs, and without prejudice to the proceedings
already had, at any time before the period for answering it shall expire or within twenty days after the answer to such pleading shall be served. In such case a copy of the amended pleading
shall be served on the adverse party. Amend § 173. The court may, at any time, in furtherance of justice, ments by the
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, or by inserting other allegations material to the case, or by conforming the pleading or proceeding to the facts proved. The court may likewise, in its discretion, allow an answer or reply to be made, or other act to be done, after the time limited by this act, or by an order enlarge such time and may also at any time within one year after notice thereof relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertance, surprise, or excusable neglect; and may supply an omission, in any proceeding; and whenever any proceeding taken by a party fails to conform in any respects to the provisions of this act, the court shall liave power to permit an amendment of such proceeding, so as to make it conformable to law.
$ 174. After demurrer, either party may amend any pleading Amendment, demurred to of course, and without costs, on serving a copy of after demurthe same as amended within twenty days on the adverse party, who shall have twenty days to answer, reply or demur thereto, if the pleading amended be a complaint or answer, or demur thereto, if it be a reply ; but a party shall not so amend more than once. Upon the decision of a demurrer the court may, upon such terms as shall be just, allow any party to withdraw the same and plead over.
$ 175. When the plaintiff shall be ignorant of the name of a Suing a party defendant, such defendant may be designated in any pleading or tious name, proceeding, by any name ; and when his true name shall be dis
when allow covered, the pleading or proceeding may be amended accordingly. No error or
$ 176. The court shall, in every stage of an action, disregard any error, or defect in the pleadings or proceedings, which shall unless it' afnot affect the substantial rights of the adverse party; and no stantial judgment shall be reversed or affected by reason of such error or rights. defect.
$ 177. The plaintiff and defendant respectively, may be Supplementallowed, on motion, to make a supplemental complaint, answer or answer or reply, alleging facts material to the case, occurring after the former reply. complaint, answer or reply, or of which the party was ignorant when his former pleading was made.
defect to be regarded,
II. Claim and delivery of personal property.
Arrest and bail.
179. Cases in which defendant may te arrested.
Surrender of defendant.