spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff shall establish on the trial that it was so published or spoken. Truth May Be Alleged. 3158. 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 the damages; and, whether he prove the justification or not, he may give in evidence the mitigating circumstances. LIBEL-PLEADINGS. Intent and motive of defendant may be shown to reduce damages. When Several Causes of Action May Be United. 3159. SEC. 64. The plaintiff may unite several causes of action in the same complaint, when they all arise out of: First, contracts, express or implied; or, second, 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, third, claims to recover specific personal property, with or without damages for the withholding thereof; or, fourth, claims against a trustee, by virtue of a contract, or by operation of law; or, fifth, injuries to character; or, sixth, injuries to person; or, seventh, injuries to property. But the causes of action so united shall all belong to only one 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 injury to character or to the person. Allegations, When Deemed Controverted. 3160. 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 the trial be deemed controverted by the adverse party. Material Allegations. 3161. 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. Answer After Demurrer. 3162. 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 41 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 construed as denied. 1. AMENDMENT WHICH CHANGES PARTIES TO AN ACTION CANNOT BE MADE. Little V. V. & G. H. W. Co., 9 Nev. 317. 2. AMENDMENT OF COMPLAINT. Notice must be given to defendant. Keller v. Blasdel, 2 Nev. 162. 3. AMENDED COMPLAINT ENTIRELY SUPERSEDES ORIGINAL. McFarland v. Ellsworth M. & M. Co., 8 Nev. 57. 4. AMENDMENT, REDUCING CLAIM FOR DAMAGES-No Error. Carlyon v. Lannan, 4 Nev. 156. 5. AMENDMENTS. Error in names of petitioners in a case in probate, pending and undetermined, may be corrected. Lucich v. Medin, 3 Nev. 93. 6. AMENDMENT OF COMPLAINT. It is error to render judgment against a party who is made defendant by amending a complaint without giving him an opportunity to answer. Mears v. James, 2 Nev. 342. 7. AMENDMENT OF COMPLAINT. That it will deprive defendant of right to plead statute of limitations is no reason why it should not be allowed. Tucker v. Mayor, et al., 4 Nev. 20. 8. PLEADING, SUFFICIENCY OF-ON MOTION TO QUASH-RULING OF COURT BELOW, FOLLOWED BY APPELLATE COURT. Where, on a motion to quash which amounted to a demurrer, the trial court held the complaint sufficient, justice requires that the appellate court should do the same, as otherwise the pleader would lose all right of amendment. Schneider v. Bray, 22 Nev. 272. Amendment of Pleadings-Answer After Default. 3163. 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, inadvertence, surprise or excusable neglect; and 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 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. 1. SECTION 68. Should be full stop after words "excusable neglect." Howe v. Coldren, 4 Nev. 171. OPENING DEFAULT-Affidavit of Merits-Practice as to Opening Defaults. Id. 2. MOTION TO SET ASIDE DEFAULT-AFFIDAVIT OF MERITS BY ATTORNEY is sufficient, when it shows that he is familiar with all of the facts in the case. Horton v. New Pass G. & S. M. Co., 21 Nev. 184. WHEN MOTION SHOULD BE MADE. An application to open a default should be made immediately. Id. 3. SECTION 68 DOES NOT EXTEND to Case Where Court Has Lost Jurisdiction by Lapse of Time-Nunc Pro Tunc Order. Killip v. Empire M. Co., 2 Nev. 34. 4. TECHNICAL MISTAKE. Section 68 is intended for benefit of those only who have meritorious defense, and who have complied with the law; and not for those who offer a mere technical excuse. Jones v. San Francisco Sulphur Co., 14 Nev. 172. 5. DEFAULT SHOULD NOT BE SET ASIDE FOR MERE TECHNICAL DEFENSE. Judgment entered by default should not be set aside on affidavit which does not show that defendant has a good and meritorious defense to the action. Ewing v. Jennings, 15 Nev. 379. 6. DEFAULT-Power of Court TO SET ASIDE-Where Appearance Is Entered by Unauthorized Attorney. Stanton-Thompson Co. v. Craine, 24 Nev. 7. DEFAULT-Excusable Negligence-Affidavit of Merits by Attorney. State v. C. V. & C. M. Co., 13 Nev. 195. 8. JOINT JUDGMENT-LAPSE OF TERM-MOTION TO SET ASIDE. On motion of one joint defendant judgment may be set aside as to both. Stevenson & Son v. Mann & Smith, 13 Nev. 268. 9. AMENDMENT OF AFFIDAVIT-WHEN ALLOWED. Courts should be liberal in allowing amendments. Elder v. Frevert, 18 Nev. 278. 10. COURT SHOULD EITHER GRANT LEAVE TO AMEND OR DISMISS ACTION WITHOUT PREJUDICE 11. AMENDMENT-Discretionary Power of Court. McCausland v. Ralston, 12 Nev. 195. 13. AMENDMENT OF COMPLAINT-DISCRETION OF TRIAL COURT. 14. AMENDMENT OF PLEADING UNDER SECTION 68. Courts have power to amend in furtherance of justice, but rights and liabilities of third parties must not be changed. Quillen v. Arnold, 12 Nev. 234. 15. AMENDMENT TO PLEADINGS. If evidence is objected to because the pleadings are defective, court should allow the pleadings to be amended. Jeffree v. Walsh, 14 Nev. 140. 16. AMENDMENT OF COMPLAINT AFTER FINDINGS ARE MADE-When Not Allowable. Marshall v. Golden Fleece M. Co., 16 Nev. 156. AMENDMENTS DURING TERM. Court may amend orders of record concerning extension of time, so as to conform to the truth, any time during term. Id. 17. AMENDMENT AFTER ADJOURNMENT OF TERM cannot be made unless there is something in record to amend by. Clark v. Strouse, 11 Nev. 76. 18. WHEN DEFAULT IMPROPERLY TAKEN. Defendant should apply to court during term for relief. Kidd v. Four-Twenty M. Co., 3 Nev. 381. 19. JURISDICTION OF COURT AFTER EXPIRATION OF TERM. The district court has no jurisdiction at a subsequent term to set aside a default or vacate a decree or judgment rendered at a previous term of court unless its jurisdiction is saved by some proper proceeding instituted within the time allowed by law. Daniels v. Daniels, 12 Nev. 118; State v. Bank of Nevada, 4 Nev. 358; State v. Fourth Judicial District Court, 16 Nev. 371; Lang Syne M. Co. v. Ross, 20 Nev. 127. Defendant's Name Not Known. 3164. 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. Pleadings Construed. 3165. 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. Error, When Disregarded. 3166. 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. 1. PLEADING CONSTRUED LIBERALLY, The rule of construing pleadings most strongly against the pleader has been changed. For the purposes of determining its effect, a pleading should be liberally construed. Ferguson v. V. & T. R. Co., 13 Nev. 184. 2. CONSTRUCTION OF PLEADING-Mandamus. Flagg v. Trustees Lady Bryan M. Co., 4 Nev. 400. 3. CONSTRUCTION OF PLEADING. Sections 70 and 71 have liberalized the rules of construction applicable to pleadings so as not only to embrace the whole of the English statutes of jeofailes and amendments, but to go somewhat beyond. McManus v. Ophir Co., 4 Nev. 15. 4. ANSWER MAY BE HELD TO AID THE COMPLAINT AND SUSTAIN THE ACTION. Hawthorne v. Smith, 3 Nev. 182. 5. TECHNICAL ERROR DISREGARDED-Notice Not Properly Served, but Purpose Accomplished. Lake v. Lake, 16 Nev. 363. Arrest in Civil Cases. TITLE V. Of the Provisional Remedies in Civil Actions. CHAPTER 1-ARREST AND BAIL. 3167. SEC. 72. No person shall be arrested in a civil action except as prescribed by this Act. Ex Parte Bergman, 18 Nev. 331. When May Be Made. 3168. SEC. 73. The defendant may be arrested, as hereinafter prescribed, in the following cases arising after the passage of this Act: First-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 libel or slander. Second-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 professional employment, or for a willful violation of duty. Third-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. Fourth-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. Fifth-When the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. Order for Arrest. 3169. 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. Affidavit Necessary for Arrest. 3170. 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 the case is one of those mentioned in section seventythree. 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 Court. To Give Undertaking. 3171. SEC. 76. Before making the order the Judge shall require a written undertaking, payable in gold coin of the United States, 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. When Order May Be Made. 3172. 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, naming the money or currency in which it is payable, and to return the order at a time therein mentioned to the Clerk of the court in which the action is pending. Duty of Sheriff. 3173. 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. How Executed. 3174. SEC. 79. The Sheriff shall execute the order by arresting the defendant and keeping him in custody until discharged by law. Sections 80-85, inclusive, made applicable to justice's courts by Section 527 of this Act. How Discharged. J. C. 3175. 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 in the money or currency therein named, as provided in this chapter. Bail, How Given. J. C. 3176. SEC. 81. The defendant may give bail by causing a written undertaking, payable in the money of the contract (if any be named), and in other cases as directed by the Judge, to be executed by two or more sufficient sureties, stating their places of residence and occupations, to the effect that they are bound in the amount mentioned in the order of arrest; that the defendant shall at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein; or that they will pay to the plaintiff the amount of any judgment which may be recovered in the action. Bail May Surrender Defendant. J. C. 3177. SEC. 82. At any time before judgment, or within ten days thereafter, the bail may surrender the defendant in their exoneration; or he may surrender himself to the Sheriff of the county where he was arrested. Bail May Arrest Defendant. J. C. 3178. SEC. 83. For the purpose of surrendering the defendant, the bail at any time or place before they are finally charged, may themselves arrest him; or, by a written authority, indorsed on a certified copy of the undertaking, may empower the Sheriff to do so. Upon the arrest of the defendant by the Sheriff, or upon his delivery to the Sheriff by the bail, or upon his own surrender, the bail shall be exonerated; provided, such arrest, delivery, or surrender shall take place before the expiration of ten days after judgment; but if such arrest, delivery, or surrender be not made within ten days after judgment, the bail shall be finally charged on their undertaking, and be bound to pay the amount of the judgment within ten days thereafter. Judgment Against Bail. J. C. 3179. SEC. 84. If the bail neglect or refuse to pay the judgment within ten days after they are finally charged, an action may be commenced against such bail for the amount of such original judgment. J. C. Bail, How Exonerated. 3180. SEC. 85. The bail shall also be exonerated by the death of the defendant, or his imprisonment in a state prison, or by his legal discharge from the obligation to render himself amenable to the process. Proceedings After Arrest. 3181. SEC. 86. Within the time limited for that purpose, the Sheriff shall file the order of arrest in the office of the Clerk of the court in which the action is pending, with his return indorsed thereon, together with a copy of the undertaking of the bail. The original undertaking he shall retain in his possession until filed, as herein provided. The plaintiff, within ten days thereafter, may serve upon the Sheriff a notice that he does not accept the bail, or he shall be deemed to have accepted them, and the Sheriff shall be exonerated from liability. If no notice be served within ten days, the original undertaking shall be filed with the Clerk of the Court. Notice of Justification of Bail. 3182. SEC. 87. Within five days after the receipt of notice, the Sheriff or defendant may give to the plaintiff, or his attorney, notice of the justification of the same, or other bail (specifying the places of residence and occupations of the latter), before the Judge of the Court, or Clerk, at a specified time and place; the |