, 1854-06-17

| good cause shown, he allowed to defend af
ter Judgment, and within one year after tho
rendition Of such Judgment, on such term,
us may be just, and if the defence be sue
cessful, and the judgment, or any part
thereof, have been collected or otherwise
enforced, such restitution may thereupor
be compelled as the court shall direct
Provided, That in all cases before the de,
iendant shall be allowed to defend, he shall
make an affidavit that he has, as he be,
lieves, good defence to the action, or tc
some part thereof
See. 32. Whenever it shall appear by
the return of the sheriff, or his deputy, OF
the person appointed TO serve a summons,
that he has not served it upon the defend
ants as prescribed in the twcnty-eighth sec.
ton, the clerk shall, at the request of the
plaintiffs, issue another summons, and so on
till service be had; or the plaintiff may
proceed, by publication in the manner be-
fore stated, at his election.
Sec 33. Where the action is against
two or more defendants upon a joint con-
tract or liability, and one or more cannot
be served with summons, the plaintiff, un-
less for good cause the court shall other
wise direct, may proceed TO Judgment
against the defendant served, and at any
time thereafter, while such Judgment re-
mains unSatis6ed, the clerk, on written ap-
plication of the party interested, or his at
torney, shall issue summons against the
defendant not served, and upon the service
thereof with copy of the complaint, up
on such defendant, the same proceedings
shall bc had as though he had been origin
ally served with the summons. Where the
action is against the defendants severally
and jointly, or severally liable, he may pro
ceed against the defendants served, in the
same manner as though they were the only
defendants
Sec. "a. Proof of the service of the sum-
mons and complaint shall be as follows
LIST. If served by the sheriff or his dep
uty, the return-of such sheriff or deputy; OF,
I'd. If by any other person, his affidavit
thereof or, r 4.
Sd. In case Of publication, the affidavit
of the printer, or his foreman or principal
clerk, showing the same and an affidavit
of deposit Of copy Of the summons and
complaint in the post Office, if the same
shall have been deposited or, ........
4th. The written admission of the de-
fendant In case Of service, otherwise than
by publication, the certificate, affidavit, or
admission, must state the time, place, and
manner of service. ...
See. 35. From the time of the service
of the summons and complaint in civil ac-
ton, the court shall be deemed, to have
acquired jurisdiction, and to have control
of all the subsequent proceedings. A vol
untary appearance of the defendant shall
be equivalent to personal service Of the
summons upon him.
PLEApINGs.
Sec. sc. All the forms Of pleading here
tofore existing in civil actions, inconsistent
with the provisions Of this act are abolished,
and hereafter the forms II pleading and
the rules by which the Ssuficiency Of the
pleadings is to be determined, shall be
those prescribed by statute.
Sec. 3f The only pleadings on the
part of the plaintiff shall be
lst, the complaint, 2nd, the demurrer, or
Sd, the reply.
And on the part Of the defendant
lst, the demurrer, or 2nd, the answer.
THE COMPLAINT.
Sec. 3s. The first pleading on the part
of the plaintiff, shall be the complaint.
Sec. 80. The complaint shall contain
/. The title of the cause, specifying the
name Of the court and the name of the
county in whchthe action is brought, aid
the names Of the parties TO the action,
plaintiff and defendant.
., A plain and concise statement of the
facts constituting the cause of action, with
out unnecessary repetition,
3. A dcmaud for the relief which the
plaintiff claims-if the recovery of money,
or damages be demanded, the amount there
Of shall be stated.
THE DEMURRER.
Sec. 40. The defendant may demur to
the complaint when it shall appear upon
the face thereof; either,
/. That the court has no jurisdiction; or
9. That the plaintiff has no legal c0pac-
ity to sue or
D. Hub llClN 10 uuOlhCl NNtluu
between The same parties for the same
cause; or
4. That there is defect Of parties,
plaintiff or defendant or
5. That several causes Of action have
been improperly united I; or
6. That the complaint does not state
facts Sufficient to constitute cause Of ae-
ton.
Sec. Al. The demurrer shall distinctly
specify the grounds Of objection to the com
plant, unless it does so it may be disregar
ded, it may be taken to the whole com
plant, or to any of the alleged causes Of
action stated therein.
Sec, 42. When any Of the matters emu
meratcd in section forty do not appear up
on the face Of the complaint, the objection