In action to recover proper trained for dam age, the amount of damages; and, whether he prove the justification or not, he may give, in evidence, the mitigating circumstances. SEC. 189. In an action to recover the possession of property disty that is dis- trained doing damage, an answer that the defendant, or person by answer whose command he acted, was lawfully possessed of the real property upon which the distress was made, and that the property distrained was at the time doing damage thereon, shall be good, without setting forth the title to such real property. need not set forth title. What causes of action may SEC. 190. The plaintiff may unite, in the same complaint, several be joined in the causes of action, whether they be such as have been heretofore desame complaint. nominated legal or equitable, or both, where they all arise out of: 1. The same transaction, or transactions connected with the same subject of action; or, 7-301. Suber v. Allen. [Mss.] Allegation not denied-wher 2. Contract, express or implied; or, 3. Injuries with or without force, to person and property, or either; or, 4. Injuries to character; or, 5. Claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same; or, 6. Claims to recover personal property, with or without damages for the withholding thereof; or, 7. Claims against a trustee, by virtue of a contract, or by operation of law. But the causes of action, so united, must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be separately stated. In actions to foreclose mortgages, the Court shall have power to adjudge and direct the payment, by the mortgagor, of any residue of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in cases in which the mortgagor shall be personally liable for the debt secured by such mortgage; and if the mortgage debt be secured by the covenant or obligation of any person other than the mortgagor, the plaintiff may make such person a party to the action, and the Court may adjudge payment of the residue of such debt remaining unsatisfied after a sale of the mortgaged premises against such other person, and may enforce such judgment as in other cases. SEC. 191. Every material allegation of the complaint, not conto be deemed troverted by the answer, as prescribed in Section one hundred and true. 10-100, 185. seventy-two, and every material allegation of new matter in the 6-67, 9-458. answer, constituting a counter claim, not controverted by the reply, as prescribed in Section one hundred and seventy-six, shall, for purposes of the action, be taken as true. But the allegation of new matter in the answer, not relating to a counter claim, or of new matter in a reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require. CHAPTER VI. MISTAKES IN PLEADING, AND AMENDMENTS. SEC. 192. Material variances, how provided for. 195. Amendments of course and after demurrer. 197. Court may give relief in case of complaint. 198. Suing a party by a fictitious name. 199. No error or defect to be regarded unless it affect 200. Supplemental complaint, answer and reply. Materiel vari ance. SEC. 192. No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or 3-410, 6-138. defence, upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the Court, and in what respect he has been misled; and thereupon the Court may order the pleading to be amended, upon such terms as shall be just. variance. SEC. 193. Where the variance is not material, as provided in Immaterial the last Section, the Court may direct the fact to be found accord- 3-411, 6-138. ing to the evidence, or may order an immediate amendment without costs. Failure of 3-411, 5-289, SEC. 194. Where, however, the allegation of the cause of action proof. or defence to which the proof is directed is not proved, not in 6-138. of course and of demurrer. 8-200. Cleveland et ux. some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, within the last two Sections, but a failure of proof. Amendments SEC. 195. Any pleading may be once amended by the party of after allowance course without costs, and without prejudice to the proceedings already had, at any time within twenty days after it is served, or at any time before the period for answering it expires; or it can be so amended at any time within twenty days after the service of the answer or demurrer to such pleading, unless it be made to v. Cohrs. (Mss.) appear to the Court that it was done for the purposes of delay, and the plaintiff or defendant will thereby lose the benefit of a circuit or term for which the cause is or may be noticed; and if it appear to the Court that such amendment was made for such purpose, the same may be stricken out, and such terms imposed as to the Court may seem just. In such case a copy of the amended pleading must be served on the adverse party. After the decision of a demurrer, either at a general or special term, the Court may, in its discretion, if it appear that the demurrer was interposed in good faith, allow the party to plead over upon such terms as may be just. If the demurrer be allowed for the cause mentioned in the fifth sub-division of Section one hundred and sixty-seven, the Court may, in its discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned. Amendment by order. 9-33 SEC. 196. The Court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any 5-289, 8-47, 346, pleading, process or proceeding, by adding or striking out the name of any party; or by correcting a mistake in the name of a S. C. R. R. v. party, or a mistake in any other respect; or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defence, by conforming the pleading or proceeding to the facts proved. Barrett. (Mss.) Relief in cases of mistake. 9-285, 10-181, SEC. 197. The Court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, 2-393, 7-76, 8-346, or other Act to be done, after the time limited by this Act, or, by an order, enlarge such time; and may also, in its discretion, and upon such terms as may be just, at any time within one year after vin. (Ms.) notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, 11-584. Garvin v. Gar surprise, or excusable neglect, and may supply an omission in any proceeding; and whenever any proceeding taken by a party fails to conform in any respect to the provisions of this Code, the Court may, in like manner, and upon like terms, permit an amendment of such proceeding, so as to make it conformable thereto. name. SEC. 198. When the plaintiff shall be ignorant of the name of Fictitious a defendant, such defendant may be designated in any pleading or proceeding by any name; and when his true name shall be discovered, the pleading or proceeding may be amended accordingly. fects to be dis SEC. 199. The Court shall, in every stage of action, disregard Error of deany error or defect in the pleadings or proceedings, which shall regarded. not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error defect. or 4-401, 10-181. Wallacev. Lock. (Mss.) 11-584. pleading. SEC. 200. The plaintiff and defendant respectively may be Supplemental allowed, on motion, to make a supplemental complaint, answer or reply, alleging facts material to the case occurring after the former complaint, answer or reply, or of which the party was ignorant when his former pleading was made, and either party may, by leave of the Court, in any pending or future action, set up by a supplemental pleading the judgment or decree of any Court of competent jurisdiction rendered since the commencement of such action, determining the matters in controversy in said action, or any part thereof, and if said judgment be set up by the plaintiff, the same shall be without prejudice to any provisional remedy theretofore issued or other proceedings had in said action on his behalf. 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. PROVISIONAL REMEDIES. CHAPTER I. ARREST AND BAIL. SEC. 201. No person to be arrested in a civil action, except as prescribed. 202. Arrest in civil actions, in what cases. this Chapter applies. To what actions 205. Security by plaintiff before obtaining order for arrest. 206. Order for arrest, when it may be made, and its form. 207. Original affidavit and order to be delivered to Sheriff, and copy to be delivered to defendant. 208. Arrest, how made. 209. Defendant to be discharged on giving bail or making a deposit. 210. Bail, how given. 211. Surrender of defendant. 212. The like. 213. Bail, how proceeded against. 214. Bail, how exonerated. 215. Delivery of undertaking of bail to plaintiff, and its acceptance or rejection by him. 216. Notice of justification. New bail. 217. Qualification of bail. 218. Justification of bail. 219. Allowance of bail. 220. Deposit in lieu of bail. 221. Payment of deposit into Court. |