1851. Where action or stage owners $128. An action against a railroad company, or an owner of a line of mail stages or other coaches, for transagainst railroad porting a slave as a passenger, or for an injury to person or property upon the road or line of stages or coaches of the defendant, or upon a liability as a carrier, may be brought in any county through or into which the road or line of stages or coaches of the defendant, upon which the cause of action arose, passes. to be brought. § 129. An action, other than one of those mentioned in Where against sections one hundred and nineteen and twenty, against a turnpike road company, may be brought in any county in which any part of the road of the defendant lies. a turupike road company. boat, wherever found. § 130. An action to subject a steamboat or other vessel, Against a steam. upon a liability by statute, for the removal of a slave, or for an injury to another boat or craft, or for a trespass of its officers or crew, or to enforce a lien upon a steamboat for the wages of its officers or crew, or for work, materials, or supplies, may be brought in any county in which such boat or vessel may be found. Against a nonresident wher § 131. An action, other than one of those mentioned in sections one hundred and nineteen and twenty, against a ever property or non-resident of this state, or a foreign corporation, may be brought in any county in which there may be property of or debts owing to the defendant. debts may be found In other actions, defendants may wherever one of be found. If but one de must be on him in county where fendant, service ju lgment is ren. dered. If several de fendants service must be on one in county where judgment is rendered. waived § 132. Every other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned. § 133. Where any action embraced in the last section is against a single defendant, the plaintiff shall not be enti tled to judgment against him, on the service of a summons in any other county than that in which the action is brought, unless he resided in that county at the commencement of the action, or unless, having appeared therein, he fails to object, before the trial, to its proceeding against him. § 134. Where any action embraced in section one hundred and thirty-two, is against several defendants, the plaintiff shall not be entitled to judgment against any of them, on the service of a summons in any other county than that in which the action is brought, where no one of the defendants is summoned in that county, or resided therein at the commencement of the action, or where, if any of them resided or were summoned in that county, the action is discontinued or dismissed as to them, or judgment therein is rendered in their favor; unless the defendant summoned in another county, having appeared in the action, failed to object, before the judgment, to its proceeding against him. § 135. The objection that one of several defendants was Objection summoned in another county, if he appears, shall be deembefore ed to be waived, unless it is made before judgment as to made judgment. unless him. § 136. If, after the commencement of an action in the county of the defendant's residence, he removes therefrom, the service of a summons upon him, in any other county, shall have the same effect as if it had been made in the county from which he removed. 1851. If defendant removes after rction is com menced, sum mons may go to another county. TITLE VI. JOINDER OF ACTIONS. What causes of action may be § 137. Several causes of action may be united in the same petition, where each affects all the parties to the joined. action, may be brought in the same county, be prosecuted by the same kind of proceedings, and all belong to only one of the following classes: 1. Claims arising out of contract, express or implied. 2. Claims for the recovery of specific real property, and the rents, profits, and damages for withholding the same. 3. Claims for the recovery of specific personal property, and damages for the taking or withholding the same. 4. Claims for partition of real or personal property, or both. 5. Claims arising from injuries to character. 6. Claims arising from injuries to person and property. 7. Claims against a trustee by virtue of a contract, or by operation of law. Any cause of action may be § 138. The plaintiff may strike from his petition any cause of action, at any time before the final submission of stricken out be the case to the jury, or to the court where the trial is by the court. § 139. The court, at any time before the defense, shall, on motion of the defendant, strike out of the petition any cause or causes of action improperly joined with others. fore submission of case. Causes of action may be stricken out before defense. Exceptions to misjoinder waived unless § 140. All objections to the misjoinder of causes of action, shall be deemed to be waived, unless made as provided in the last section; and all errors in the decisions of the court made before dethereon are waived, unless excepted to at the time. feuse. [Pleadings. Forms hereto. fore § 141. The pleadings are the written statements, by the parties, of the facts constituting their respective claims and defenses. § 142. The forms of pleadings in civil actions and suits, heretofore existing, are abolished; and hereafter, the forms existing of pleadings in civil actions, and the rules by which their sufficiency is to be determined, are those prescribed in this code. abolished. Pleadings al. lowed by code. The petition and what it must contain. § 143. The only pleadings allowed, are 1. The petition by the plaintiff. 2. The demurrer, or answer, by the defendant. CHAPTER 2. The Petition. § 144. The first pleading by the plaintiff, is the petition. The petition must contain 1. The style of the court in which the action is brought. 2. The style of the action, consisting of the names of all the parties thereto, distinguishing them as plaintiffs and defendants, followed by the word "petition," if the proceedings are ordinary, and by the words "petition in equity," if the proceedings are equitable. 3. A statement in ordinary and concise language, without repetition, of the facts constituting the plaintiff's cause of action. 4. A demand of the relief to which the plaintiff considers himself entitled. § 145. Where the petition contains more than one cause Each cause of of action, each shall be distinctly stated in a separate paragraph, and numbered. action to be sep. arately stated. CHAPTER 3. The demurrer. § 146. The defendant may demur to the petition, where The demurrer. it appears on its face, either and grounds thereof. 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or 2. That the plaintiff has not legal capacity to sue; or 3. That there is another action pending between the same parties, for the same cause; or 4. That there is a defect of parties, plaintiff or defendant; or 5. That the petition does not state facts sufficient to constitute a cause of action. § 147. The demurrer shall distinctly specify the grounds of objection to the petition; unless it does so, it shall be regarded as objecting only that the petition does not state facts sufficient to constitute a cause of action. If demurrer is sustained, plain. If objection not stated by de murrer or an. swer, is waived. § 148. If the court sustains the demurrer, the plaintiff may amend, with or without costs, as the court may order. tiff may amend. § 149. When any of the matters enumerated in section one hundred and forty-six, do not appear upon the face of the petition, the objection may be taken by answer. If no such objection is taken either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court over the subject of the action, and the objection that the petition does not state facts sufficient to constitute a cause of action. § 150. The defendant may demur to one or more of the several causes of action alledged in the petition, and answer as to the residue. CHAPTER 4. The answer. § 151. The answer shall contain Defendant may answer part & demur to part. The answer, & contain. 1. The style of the court and the style of the action, what it 2. A denial of each allegation of the petition con- 3. A statement of any new matter constituting a defense, counter-claim, or set-off, in ordinary and concise language, without repetition. 4. The defendant may set forth in his answer as many grounds of defense, counter-claim, and set-off, whether legal or equitable, as he shall have. Each shall be distinctly stated in a separate paragraph, and numbered. The several defenses must refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished. $152. The counter-claim mentioned in this chapter must be a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising must Counter claim, and of what it consists. 1851. New party to be made if necessary. out of the contract or transactions set forth in the petition, as the foundation of the plaintiff's claim, or connected with the subject of the action. § 153. When it appears that a new party is necessary to a final decision upon the counter-claim, the court may either permit the new party to be made, by a summons, to reply to the counter-claim in the answer, or may direct that it be stricken out of the answer, and made the subject of a separate action. § 154. A set-off can only be pleaded in an action foundSet-off-in ed on contract, and must be a cause of action arising upon contract, or ascertained by the decision of a court. what cases it can be pleaded. be made if necessary. § 155. Where it appears that a new party is necessary New party to to a final decision upon the set-off, the court shall permit the new party to be made, if it also appears that, owing to the insolvency or non-residence of the plaintiff, or other cause, the defendant will be in danger of losing his claim unless permitted to use it as a set-off. § 156. Where the facts stated in answer are not sufficient If answer in to constitute a defense, counter-claim, or set-off, the plaintiff may demur. sufficient plain tiff may demur Guardian, com mittee, &c., to § 157. It shall be the duty of the guardian of an infant, or committee of a person of unsound mind, or attorney apfile answer de pointed for a prisoner, to file an answer denying the material allegations of the petition prejudicial to such defend nying allegations. ant. CHAPTER 5. The reply-in what cases it can be filed. tains new mat ter, plaintiff may reply. § 158. There shall be no reply, except upon the allegation of a counter-claim or set-off in the answer. § 159. When the answer contains new matter constituIf answer con- ting a counter-claim or set-off, the plaintiff may reply to such new matter, denying each allegation controverted by him, or any knowledge or information thereof sufficient to form a belief, and may alledge in concise language any new matter not inconsistent with the petition, constituting a defense to the counter-claim or set-off. If reply insufficient, defendant may de. mur. § 160. Where the facts stated in the reply do not amount to a sufficient defense, the defendant may demur. CHAPTER 6. § 161. The defense to an action prosecuted by ordinary When defense proceedings, must be filed on the day of the term on which the case is set for trial must be filed. 1. Where the summons has been served ten days before the commencement of the term, in the county in which the action is brought, or in an adjoining county; 2. Where it has been served twenty days, elsewhere in the state, or sixty days out of the state; or |