and when the complaint is verified, or when the state, or any officer of the state, in his official capacity, is plaintiff, the answer must be verified, unless an admission of the truth of the complaint might subject the party to a criminal prosecution, or unless an officer of the state, in his official capacity, is defendant. In all cases of a verification of a pleading, the affidavit of the party must 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 must be by the affidavit of a party, unless the parties are 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 one of the parties, he must set forth in the affidavit the reasons why it is not made by one of the parties. When a corporation is a party, the verification may be made by any officer thereof.

10,447. Copy of written instrument contained in complaint admitted, unless answer verified.

SEC. 447. 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 are deemed admitted, unless the answer denying the same be verified.

10,448. Genuineness of instrument, how controverted.

SEC. 448. When the defense to an action is founded on a written instrument, and a copy thereof is contained in the answer, or is annexed thereto, the genuineness and due execution of such instrument are deemed admitted, unless the plaintiff file with the clerk, within ten days after receiving a copy of the answer, an affidavit denying the same, and serve a copy thereof on the defendant. [Amendment, approved March 24, 1874; Amendments 1873-4, 301; took effect July 1, 1874.(a)

10,449. Exceptions to rules prescribed by two preceding sections.

SEC. 449. But the execution of the instruments mentioned in the two preceding sections, is not deemed admitted by a failure to deny the same under oath, if the party desiring to controvert the same, is, upon demand, refused an inspection of the original.

CHAPTER VII.

GENERAL RULES OF PLEADING.

10,452. Pleadings to be liberally construed.

SEC. 452. In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.

10,453. Sham and irrelevant answers, etc., may be stricken out.

SEC. 453. Sham and irrelevant answers, and irrelevant and redundant matter inserted in a pleading, may be stricken out, upon such terms as the court may, in its discretion, impose.

10,454. How to state an account in pleadings.

SEC. 454. It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must 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

(a) The original section, instead of "within ten days after receiving a copy of the answer, an affidavit denying the same, and serve a copy thereof on the de

fendant," had the words "five days before the commencement of the term at which the action is to bo tried, an affidavit denying the same."

county judge, may order a further account, when the one delivered is too general, or is defective in any particular.

10,455. Description of real property in a pleading.

SEC. 455. In an action for the recovery of real property, it must be described in the complaint with such certainty as to enable an officer, upon execution, to identify it.

10,456. Judgments, how pleaded.

SEC. 456. In pleading a judgment or other determination of a court, officer, or board, it is not 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 must establish on the trial the facts conferring jurisdiction.

10,457. Conditions precedent, how to be pleaded.

SEC. 457. In pleading the performance of conditions precedent in a contract, it is not 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 must establish, on the trial, the facts showing such performance.

10,458. Statute of limitations, how pleaded.

SEC. 458. In pleading the statute of limitations it is not necessary to state the facts showing the defense, but it may be stated generally that the cause of action is barred by the provisions of section (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred.

10,459. Private statutes, how pleaded.

SEC. 459. In pleading a private statute, or a right derived therefrom, it is sufficient to refer to such statute by its title and the day of its passage.

10,460. Libel and slander, how stated in complaint.

SEC. 460. In an action for libel or slander it is not 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 is sufficient to state, generally, that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff must establish on the trial that it was so published or spoken.

10,461. Answer in such cases.

SEC. 461. 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.

10,462. Allegations not denied, when deemed true; when deemed controverted.

SEC. 462. Every material allegation of the complaint, not controverted by the answer, must, for the purposes of the action, be taken as true; the statement of any new matter in the answer, in avoidance or constituting a defense or counter-claim, must, on the trial, be deemed controverted by the opposite party.

10,463. Material allegation defined.

SEC. 463. 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.

10,464. Supplemental complaint and answer.

SEC. 464. The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer.

10,465. Pleadings to be filed and served.

SEC. 465. All pleadings subsequent to the complaint must be filed with the clerk, and copies thereof served upon the adverse party or his attorney. [Amendment, approved March 24, 1874; Amendments 1873-4, 301; took effect July 1, 1874.(•)

CHAPTER VIII.

VARIANCE-MISTAKES IN PLEADINGS AND AMENDMENTS.

10,469. Variance, when material.

SEC. 469. No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it appears that a party has been so misled, the court may order the pleading to be amended, upon such terms as may be just. [Amendment, approved March 24, 1874; Amendments 1873-4, 302; took effect July 1, 1874.(b)

10,470. Immaterial variance, how provided for.

SEC. 470. Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs.

10,471. What not to be deemed a variance.

SEC. 471. Where, however, the allegation of the claim or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it is not to be deemed a case of variance, within the last two sections, but a failure of proof.

10,472. Amendments of course an effect of demurrer.

SEC. 472. Any pleading may be amended once by the party of course, and without costs, at any time before answer or demurrer filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, who may have ten days thereafter in which to answer or demur to the amended pleading. A demurrer is not waived by filing an answer at the same time; and when the demurrer to complaint is overruled and there is no answer filed, the court may, upon such terms as may be just, allow an answer to be filed. If a demurrer to the answer be overruled, the facts alleged in the answer must be considered as denied, to the extent mentioned in section 462. [Amendment, approved March 24, 1874; Amendments 1873-4, 302; took effect July 1, 1874.(c)

10,473. Amendments.

SEC. 473. The court may, in furtherance of justice, and on such terms as may be proper, allow a party to 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 answer or demurrer. The court may likewise, in its discretion, 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

(a) The original section did not have the words "copies thereof."

(b) The original section differed from the above amendment in the second or last sentence, which read as follows: "Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction

of the court, and thereupon the court may order the
pleading to be amended, upon such terms as may be
just."

(c) The original section in the second sentence, instead of "may, upon such terms as may be just," had the word "must."

2

like terms, allow an answer to be made after the time limited by this code, and also relieve a party, or his legal representative, from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; and when, for any reason satisfactory to the court, or the judge thereof, the party aggrieved has failed to apply for the relief sought during the term at which such judgment, order, or proceeding complained of was taken, the court, or the judge thereof, in vacation, may grant the relief upon application made within a reasonable time, not exceeding six months after the adjournment of the term. When, from any cause, the summons in an action has not been personally served on the defendant, the court may allow, on such terms as may be just, such defendant, or his legal representative, at any time within one year after the rendition of any judgment in such action, to answer to the merits of the original action.

When, in an action to recover the possession of personal property, the person making any affidavit did not truly state the value of the property, and the officer taking the property, or the sureties on any bond, is sued for taking the same, the officer or sureties may, in their answer, set up the true value of the property, and that the person in whose behalf said affidavit was made was entitled to the possession of the same when said affidavit was made, or that the value in the affidavit stated was inserted by mistake, the court shall disregard • the value as stated in the affidavit, and give judgment according to the right of possession of said property at the time the affidavit was made. [Amendment, approved March 24, 1874; Amendments 1873-4, 302; took effect July 1, 1874.(a) 10,474. Suing a party by a fictitious name, when allowed.

SEC. 474. When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.

10,475. No error or defect to be regarded unless it affects substantial rights.

SEC. 475. The court must, in every stage of an action, disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect.

10,476. Time to amend.

SEC. 476. When a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order. [Amendment, approved March 24, 1874; Amendments 1873-4, 304; took effect July 1, 1874.

(a) Original section:

SEC. 43. 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 answer or demurrer. The court may likewise, upon affidavit show. ing good cause therefor, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading or procee ing in other particulars; and may, upon like terms, allow an answer to be made after the time limited by this code; 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 judg ment, order, or proceeding complained of was taken, the court, or the 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 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 representative, at any time within six months after the rendition of any judgment in such action, to answer to the merits of the original action.

TITLE VII.

Of the Provisional Remedies in Civil Actions.

CHAPTER I. ARREST AND BAIL....

II. CLAIM AND DELIVERY OF PERSONAL PROPERTY.

III. INJUNCTION.

IV. ATTACHMENT.

V. RECEIVERS..

VI. DEPOSIT IN COURT...

CHAPTER I.

ARREST AND BAIL.

10,478. No person to be arrested except as prescribed by this code.

10,478

10,509

10,525

10,537

10,564

10,572

SEC. 478. No person can be arrested in a civil action, except as prescribed in this code.

10,479. Defendant, when subject to arrest.

SEC. 479. The defendant may be arrested, as hereinafter prescribed, in the following cases:

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;

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, to prevent its being found or taken by the sheriff;

4. When the defendant has been guilty of a 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. [Amendment, approved March 24, 1874; Amendments 1873-4, 304; took effect July 1, 1874.(a)

10,480. Order for arrest, by whom made.

SEC. 480. An order for the arrest of the defendant must be obtained from a judge of the court in which the action is brought, or from a county judge.

10,481. Affidavit for order of arrest, requisite.

SEC. 481. The order may be made whenever it appears 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 479. The affidavit must be either positive or upon information and belief; and when upon information and belief, it must state the facts upon which the information and

(a) The original section had the word "fraudu lent" before the word "misconduct" in the second subdivision, and before the word "concealed" in the

third subdivision. In the third subdivision, instead of "to prevent its being," it had the words "so that it cannot be."