Nature of coun SEC. 64. The counterclaim mentioned in the last preceding section terclaim, and how must be one existing in favor of the defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the following causes of action: stated. The defendant First. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim. Second. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action. The defendant may set forth by answer as many defenses and counterclaims as he may have. They shall each be separately stated and refer to the causes of action which they are intended to answer in such manner that they may be intelligibly distinguished. SEC. 65. The defendant may demur to one or more of several causes may demur to one of action stated in the complaint and answer the residue. or more of several causes of action and answer the rest. Sham and irrele- SEC. 66. Sham, frivolous, and irrelevant answers and defenses may vant answers be tricken out on motion, and upon such terms as the court may in its stricken out on discretion impose. motion. Reply, when to contain. SEC. 67. When the answer contains new matter, constituting a demade and what fense or counterclaim, the plaintiff may reply to such new matter, denying generally or specifically each allegation controverted by him or any knowledge or information thereof sufficient to form a belief; and he may allege in ordinary and concise language, without repetition, any new matter not inconsistent with the complaint, constituting a defense to such new matter in the answer. When plaintiff may demur to new matter in answer. When defend swer. SEC. 68. The plaintiff may demur to an answer containing new matter when it appears upon the face thereof that such new matter does not constitute a defense or counterclaim; or he may, for like cause, demur to one or more of such defenses or counterclaims and reply to the residue. SEC. 69. If the answer contain a statement of new matter, constitutant may move for ing a defense or counterclaim, and the plaintiff fail to reply or demur judgment on an- thereto within the time prescribed by law or rule of the court, the defendant may move the court for such judgment as he is entitled to on the pleadings, and if the case require it he may have a jury called to assess the damages. When defendant SEC. 70. The defendant may demur to any new matter contained in nay demur to the reply when it appears upon the face thereof that such matter is eply. not a sufficient reply to the facts stated in the answer. Sham, frivolous, and irrelevant replies may be stricken out in like manner and on the same terms as like answers and defenses. SEC. 71. Every pleading shall be subscribed by the party or his attorney, and, except a demurrer, shall also be verified by the party, his agent or attorney, to the effect that he believes it to be true. The verification must be made by the affidavit of the party, cr, if there be several parties united in interest and pleading together, by one, at least, of such parties, if such parties be within the district and capable of making the affidavit; otherwise the affidavit may be made by the agent or attorney of the party. The affidavit may also be made by the agent or attorney if the action or defense be founded on 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. When the affidavit is made by the agent or attorney, it must set forth the reason of his making it. When a corporation is a party, the verification may be made by any officer thereof upon whom service of a summons might be made, and when the United States, or any officer thereof in its behalf, is a party, the verification may be made by any person to whom all the material allegations of the pleading are known. SEC. 72. When, in the judgment of the court, an answer to an allegation in any pleading might subject the party answering to a prosecution for felony, the verification of the answer to such allegation may be omitted. Verification of pleadings. When pleadings strike out. SEC. 73. The answer or demurrer to the complaint shall be filed with the clerk by the time required to answer, and the demurrer, or reply filed, motion to thereto, as the case may be, must in like manner be filed by the first day of the next term of the court, or within such time as the court may allow after the filing of the answer to the complaint, if the same be filed in term time. A demurrer to a reply must be filed in the manner and within the time required to file a demurrer to an answer. A motion to strike out a pleading for want of verification or subscription, or because several causes of action or defense therein are not pleaded separately, or for other cause, or a sham, frivolous, or irrelevant pleading or redundant matter therein, shall be made within the time for answering such pleading. Manner of plead SEC. 74. A party may set forth in a pleading the items of an account therein alleged, or file a copy thereof, with the pleading verified by his ing an account. own oath, or that of his agent or attorney, if within the personal knowledge of such agent or attorney, to the effect that he believes it to be true. If he do neither, he shall deliver to the adverse party, within five days after a demand thereof in writing, a copy of the account, verified as in this section provided, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one filed or delivered is defective. How pleadings construed. Irrelevant and redundant matter out. Judgments, how SEC. 75. In the construction of a pleading for the purpose of determining its effect, its allegation shall be liberally construed, with a view of substantial justice between the parties. SEC. 76. If irrelevant or redundant matter be inserted in the pleadmay be stricken ing, it may be stricken out on motion of the adverse party; and when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment. SEC. 77. In pleading a judgment or other determination of a court or officer of special 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. pleaded. ed. Conditions pre SEC. 78. In pleading the performance of a condition precedent in a cedent, how plead- 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 be bound to establish on the trial the facts showing such performance. Private statute, how pleaded. City ordinance, how pleaded. Libel or slander, how pleaded. What may be pleaded in answer in such cases. Answer in action SEC. 79. 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. 80. In pleading an ordinance or enactment of any incorporated city, town, or village, or a right derived therefrom, in any action, or proceeding, it shall be sufficient to refer to such ordinance or enactment by its title and the day of its approval, and the court shall thereupon take judicial notice thereof. SEC. 81. 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 be bound to establish on trial that it was so published or spoken. SEC. 82. 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 circumstances. SEC. 83. In an action to recover the possession of property disto recover the pos- trained doing damage, an answer that the defendant or person by whose session of property command he acted was lawfully possessed of the real property upon distrained. which the distress was made, and that the property distrained was at the time doing damage thereon, shall be good without setting forth the title to such real property. What causes of SEC. 84. The plaintiff may unite several causes of action in the same action may be complaint when they all arise out of— united in same complaint. First. Contract, express or implied; or Second. Injuries, with or without force, to the person; or Fourth. Injuries to character; or Fifth. Claims to recover real property, with or without damages for the withholding thereof; or Sixth. Claims to recover personal property, with or without damages for the withholding thereof; or Seventh. 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. Material allega be deemed true. SEC. 85. Every material allegation of the complaint not controverted by the answer, and every material allegation of new matter in the tion not denied to answer not controverted by the reply, shall, for the purpose of the action, be taken as true; but the allegation of new matter in a reply is to be deemed controverted by the adverse party as upon a direct denial or the avoidance, as the case may require. SEC. 86. A material allegation in a pleading is one essential to the What is mate claim or defense, and which could not be stricken from the pleading rial allegation. without leaving it insufficient as to such claim or defense. When variance SEC. 87. No variance between the allegation in a pleading and the proof shall be deemed material, unless it shall have actually misled the deemed material. adverse party to his prejudice in maintaining his action or defense 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. When variance SEC. 88. When the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evi- not material. dence, or may order an immediate amendment, without costs. SEC. 89. When, however, the allegation of the cause of action or What deemed a defense to which the proof is directed is unproved, not in some par- failure of proof. ticular 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. What pleading may be amended SEC. 90. Any pleading may be once amended by the party of course, without costs and without prejudice to the proceedings already had, at of course. any time before the period for answering it shall expire; in such case a copy of the amended pleading shall be served on the adverse party before the expiration of said period. Amendments after demurrer. SEC. 91. After the decision upon a demurrer, if it be overruled, and it appears that such demurrer was interposed in good faith, the court and pleading over may, in its discretion, allow the party to plead over, upon such terms as may be proper. If the demurrer be sustained the court may, in its discretion, allow the party to amend the pleading demurred to, upon such terms as may be proper. SEC. 92. The court may, at any time before trial, in furtherance of justice, and upon such terms as may be proper, allow any pleading or proceeding to be amended by adding the name of a party, or other allegation material to the cause, and in like manner and for like reasons it may, at any time before the cause is submitted, allow such pleading or proceeding to be amended, by 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 when the amendment does not substantially change the cause of action or defense, by conforming the pleading or proceeding to the facts proved. Amendments allowed by court before trial or submission. Court may en- SEC. 93. The court may likewise, in its discretion and upon such large time to plead, terms as may be just, allow an answer or reply to be made or other act or relieve party to be done after the time limited by this code, or by an order enlarge from judgment. When plaintiff may be sued by fictitious name. Amended pleadings before trial to be new pleadings. causes of action or defense not sepa such time; and may also, in its discretion, and upon such terms as may be just, 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, inadvertence, surprise, or excusable neglect. SEC. 94. When the plaintiff shall be 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 shall be discovered, the pleading or proceeding may be amended accordingly. SEC. 95. When any pleading or proceeding is amended before trial, mere clerical errors excepted, it shall be done by filing a new pleading, to be called the amended complaint, or otherwise, as the case may be. Such amended pleading shall be complete in itself without reference to the original or any preceding amended one. Pleading not SEC. 96. Any pleading not duly verified and subscribed may, on verified, or con- motion of the adverse party, be stricken out of the case. When any taining several pleading contains more than one cause of action or defense, if the same be not pleaded separately, such pleading may, on motion of the adverse rately stated, may party, be stricken out of the case. When a motion to strike out is allowed, the court may, upon such terms as may be proper, allow the party to file an amended pleading, or if the motion be disallowed, and it appear to have been made in good faith, the court may, upon like terms, allow the party to plead over. be stricken out. No error to be SEC. 97. The court shall, in every stage of action, disregard any regarded unless it error or defect in the pleadings or proceedings which shall not affect affect substantial the substantial rights of the adverse party. rights. Supplemental pleadings. When defend SEC. 98. The plaintiff and defendant, respectively, may be allowed on motion to make a supplemental complaint, answer, or reply, alleging facts material to the case occurring after the former complaint, answer, or reply. Copies of all pleadings subsequent to the complaint must be served upon the adverse party or his attorney. SEC. 99. No person shall be arrested in any civil action at law except ant may be arrest- as provided in this section. The defendant may be arrested in the following cases: ed. First. In an action for the recovery of money or damages, when the defendant is about to remove from the district with intent to defraud his creditors, or when the action is for an injury to person, or for |