which any of the objections to the complaint are taken. Unless it do so, it may be disregarded. ART. 777, Sec. 42. 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. Sec. 43. 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.-[Am. April 28, 1855; R. S. St. 1854, 60; St. 1851, 57; St. 1850, 432; C. L. 526. ART. 778, Sec. 44. When any of the matters enumerated in section forty do not appear upon the face of the complaint, the objection may be taken by answer. ART. 779, Sec. 45. If no such objection be taken, either by demurrer or answer, the defendant shall 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. ART. 780, Sec. 46. The answer of the defendant shall contain: 1. If the complaint be verified, a specific denial to 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 such allegations, but a general denial shall only put in issue the material and express allegations of the complaint. 2. A statement of any new matter constituting a defense in ordinary and concise language.-[Am. May 15, 1854; R. S. St. 1851, 57; St. 1850, 432; C. L. 526.(1) ART. 781, Sec. 47. The counter claim mentioned in the last section [St. 1851, 57,] shall 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 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.(2) ART. 782, Sec. 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 shall be deprived of the benefit thereof, by the assignment or death of the other; but the two demands shall be deemed compensated, so far as they equal each other. ART. 783, Sec. 49. The defendant may set forth by answer as many defenses and counter claims as he may have. They shall each be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished. ART. 784, Sec. 50. When the answer contains new matter, the plaintiff may demur to the same for insufficiency, stating in his demurrer the grounds thereof, and he may also demur to one or more of several defenses set up in the answer. Sham and irrelevant answers and defenses may be stricken out on motion, and upon such terms as the court in its discretion may impose.-[Am. May 15, 1854; R. S. St. 1851, 58; St. 1850, 433; C. L. 527. ART. 785, Sec. 51. Every pleading shall be subscribed by the party, or his attorney, and when the complaint is verified by affidavit, the answer shall be verified also, except as provided in the next section. (1) Ladd v. Stevenson, 1 Cal. 18; Von Schmidt v. Huntington, 1 Cal, 55; Grogan v. Ruekle, id. 194; Lineker v. Ayeshford, id. 76; Kendall v. Vallejo, id. 371; Walter v. Minturn, id. 362; Gavin v. Anna, 2 Cal. 494; McLarren e. Spalding, id. 510; De Ro v. Cordes, 4 Cal. 117; Flint v. Lyon, id. 17; Taylor v. Randall, 5 Cal. 79. (2) Bernard v. Mullot, 1 Cal. 368; Case v. Maxcy, July T. 1856. ART. 786, Sec. 52. The verification of the answer required in the last section may be omitted when an admission of the truth of the complaint might subject the party to prosecution for felony. ART. 787, Sec. 53. When 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 be verified. (1) ART. 788, Sec. 54. When the defense to an action is founded upon a written instrument, and a copy thereof is contained in the answer, or a copy is annexed thereto, the genuineness and due execution of such instrument will be deemed admitted, unless the plaintiff file with the clerk, five days previous to the commencement of the term at which the action is to be tried, an affidavit denying the same. ART. 789, Sec. 55. In all cases of the verification of a pleading, the affidavit of the party shall 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 shall be by the affidavit of the party, unless he be 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 the party, he shall set forth in the affidavit the reasons why it is not made by the party. When a corporation is a party, the verification may be made by any officer thereof; or when the state, or any officer thereof in its behalf, is a party, the verification may be made by any person acquainted with the facts, except that in actions prosecuted by the attorney-general in behalf of the state the pleadings need not, in any case, be verified. (2) ART. 790, Sec. 56. 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 a judge thereof, or a county judge, may order a further account, when the one delivered is too general, or is defective in any particular. (3) ART. 791, Sec. 57. 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. ART. 792, Sec. 58. In an action for the recovery of real property, such property shall be described, with its metes and bounds, in the complaint. ART. 793, Sec. 59. 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. ART. 794, Sec. 60. 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. (4) ART. 795, Sec. 61. 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. ART. 796, Sec. 62. 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 (1) Grogan v. Ruckle, 1 Cal. 158; Youngs v. Bell, 4 Cal. 201. (2) Greenfield v. Steamer Grunnell, Jan. T. 1856. (3) Dennison v. Smith, 1 Cal. 437. 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. ART. 797, Sec. 63. 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. ART. 798, Sec. 64. The plaintiff may unite several causes of action in the same complaint, when they all arise out of: 1. Contracts express or implied; or, 2. 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; or, 3. Claims to recover specific personal property, with or without damages for the withholding thereof. 4. Claims against a trustee by virtue of a contract or by operation of law; or, 5. Injuries to character; or, 6. Injuries to person; or, 7. Injuries to property. But the causes of action so united shall all belong to one only 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 the person.[Am. April 28, 1855; R. S. St. 1851, 59; St. 1850, 433; C. L. 529. (i) ART. 799, Sec. 65. Every material allegation of the complaint, when it is verified, not specifically controverted by the answer, shall, for the purpose of the action, be taken as true. The allegation of new matter in the answer, shall, on trial, be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require.-[Am. May 15, 1854; R. S. St. 1851, 60; St. 1850, 434; C. L. 529. ART. 800, Sec. 66. A material allegation in a pleading is one essential to the claim, or defense, and which could not be stricken from the pleading without leaving it insufficient. ART. 801, Sec. 67. After demurrer, and before the trial of issue on demurrer, either party may within ten days amend any pleading demurred to, of course, and without costs, filing the same, as amended, and serving a copy thereof upon the adverse party or his attorney, who shall have ten days to answer or demur thereto, if the pleading be a complaint; or to demur thereto, if it be an answer; but a party shall not so amend more than once. When a demurrer to a complaint is overruled, and there is no answer filed, the court may, upon such terms as shall be just, and upon payment of costs, allow the defendant to file an answer. If a demurrer to the answer be overruled, the facts alleged in the answer shall still be considered as denied.-[Am. May 15, 1854; R. S. St. 1851, 60; St. 1850, 434; C. L. 529. ART. 802, Sec. 68. The court may, in furtherance of justice and on such terms as may be proper, amend any pleading or proceedings 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 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 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, inadvertance, surprise, or excusable neglect, when from any cause the summons (1) Macondray v. Simmons, 1 Cal. 393; Tendesen v. Marshall, 3 Cal. 440; Sampson v. Shaeffer, 3 Cal. 169; O'Conner v. Corbett, 3 Cal. 370; Lubert v. Chauviteau, 3 Cal. 458; Mayo v. Madden, 4 Cal. 27; Sullivan v. Davis, id. 291. and a 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.-[Am. May 18, 1853; R. S. St. 1851, 60; St. 1850, 434; C. L. 529. (1) ART. 803, Sec. 69. 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 pleading or proceeding may be amended accordingly. (2) ART. 804, Sec. 70. In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties. ART. 805, Sec. 71. 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. ART. 806. When two or more persons associated in business transact such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name, the summons in such case being served on one or more of the associates, but the judgment in such case shall bind only the joint property of the associates.-[Act May 15, 1854, in. ART. 807. A defendant, against whom an action is pending upon a contract or for specific personal property, may at any time before answer, upon affidavit that a person, not a party to the action makes against him, and without any collusion with him, a demand upon the same contract, or for the same property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount claimed on the contract, or delivering the property or its value to such person as the court may direct, and the court may, in its discretion, make the order.-[Act May 15, 1854, in. Any person shall be entitled to intervene in an action who has an interest in the matter in litigation, in the success of either of the parties to the action, or an interest against both. An intervention takes place, when a third person is permitted to become a party to an action between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant. (3)-[Act May 15, 1854, in. A third person may intervene either before or after issue has been joined in the cause.-[Act May 15, 1854, in. The intervention shall be by petition or complaint filed in the court in which the action is pending, and it must set forth the grounds on which the intervention rests; a copy of the petitions or complaint shall be served upon the party or parties to the action against whom anything is demanded, who shall answer it as if it were an original complaint in the action.-[Act May 15, 1854, in. The court shall determine upon the intervention at the same time that the action is decided; if the claim of the party intervening is not sustained, he shall pay all costs incurred by the intervention.-[Act May 15, 1854, in. 5. Provisional Remedies. ART. 808, Sec. 72. No person shall be arrested in a civil action except as prescribed by this act. Sec. 73. The defendant may be arrested as hereinafter prescribed, in the follow(1) Truebody v. Jacobson, 2 Cal. 269; Acquital v. Crowell, 1 Cal. 191; Stearns v. Martin, 4 Cal. 227; Pollock v. Hunt, 2 Cal. 193; Cook v. Spears, id. 409; Conalley e. Peck, 3 Cal. 75; Jessup v. King, 4 Cal. 331; Suydam v. Pitcher, 4 Cal. 280; Ramirez v. Murray, 5 Cal. 222; Heath v. Lent, 1 Cal. 410. (2) Morgan v. Thrift, 2 Cal. 562; McNally v. Nott, 3 Cal. 235; Cox v. Sutter, Oct. T. 1856. (3) Brooks v. Hager, 5 Cal. 281; Seargeant v. Wilson, 5 Cal. 504; People v. Talmage, July T. 1856; Yuba County v. Adams & Co., Jan. T. 1857; Marysville v. Adams & Co., id. ing cases, arising after the passage of this act: 1. In an action for the recovery of money or damages on a cause of action arising upon contract, express or implied, when the defendant is about to depart from the state, with intent to defraud his creditors, or when the action is for willful injury to person, to character or to property, knowing the property to belong to another.(1) 2. In an action for a fine or penalty, or for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer; or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such; or by any other person in a fiduciary capacity, or for misconduct or neglect in office or in a professional employment, or for a willful violation of duty. 3. In an action to recover the possession of personal property unjustly detained when the property, or any part thereof, has been concealed, removed or disposed of, so that it cannot be found, or taken by the sheriff. 4. When the defendant has been guilty of fraud in contracting the debt or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention or conversion of which the action is brought. 5. When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors.(2) ART. 809, Sec. 74. An order for the arrest of the defendant shall be obtained from a judge of the court in which the action is brought, or from a county judge. Sec. 75. The order may be made whenever it shall appear to the judge, by the affidavit of the plaintiff or some other person, that a sufficient cause of action exists, and that the case is one of those mentioned in section seventy-three. The affidavit shall be either positive or upon information and belief; and, when upon information and belief, it shall state the facts upon which the information and belief are founded. If an order of arrest be made, the affidavit shall be filed with the clerk of the county. (3) ART. 810, Sec. 76. Before making the order, the judge shall require a written undertaking on the part of the plaintiff, with sureties, to the effect that if the defendant recover judgment, the plaintiff will pay all costs and charges that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which shall be at least five hundred dollars. Each of the sureties shall annex to the undertaking an affidavit that he is a resident and householder, or freeholder, within the state, and worth double the sum specified in the undertaking, over and above all his debts and liabilities, exclusive of property exempt from execution. The undertaking shall be filed with the clerk of the court. ART. 811, Sec. 77. The order may be made to accompany the summons, or any time afterwards before judgment. It shall require the sheriff of the county where the defendant may be found forthwith to arrest him and hold him to bail in a specified sum, and to return the order, at a time therein mentioned, to the clerk of the court in which the action is pending. ART. 812, Sec. 78. The order of arrest, with a copy of the affidavit upon which it is made, shall be delivered to the sheriff, who, upon arresting the defendant, shall deliver to him the copy of the affidavit; and also, if desired, a copy of the order of arrest. ART. 813, Sec. 79. The sheriff shall execute the order by arresting the defendant and keeping him in custody until discharged by law. ART. 814, Sec. 80. The defendant, at any time before execution, shall be discharged from the arrest, either upon giving bail, or upon depositing the amount mentioned in the order of arrest, as provided in this chapter. ART. 815, Sec. 81. The defendant may give bail, by causing a written undertaking to be executed by two or more sufficient sureties, stating their places of (1) Held unconstitutional. Prader on habeas corpus, July T. 1856. (2) Soule v. Hayward, 1 Cal. 345; Snow v. Halstead, 1 Cal. 359; Matoon v. Eder, Jan. T. 1856; in re Holdforth, 1 Cal. 438. (3) Southworth v. Resing, 3 Cal. 377; McGilvery v. Morehead, 2 Cal. 607. |