intent of the legislature is very clear, that all controversies respecting the subject-matter of the litigation should be determined in one action, and the provisions of the Code are adapted to give effect to that intent. To the same general effect, also, are the cases of Crary v. Goodman, and Foot v. Sprague.

2

8

The plaintiff's right to be relieved from the effect of the release on the ground of fraud, was, under these principles, included in the preceding action. This action to secure that result was therefore improper, and the decision sustaining the demurrer to the complaint was right, and should be affirmed, with costs.

DAVIS, P. J., and BRADY, J., concurred.

Order affirmed, with costs.

HUBBELL v. FOWLER.

SUPREME COURT, SPECIAL TERM, NEW YORK, NOVEMBER, 1865.

[1 Abbott, Practice, New Series, 1.]

MOTION that plaintiff be required to reply to the first defence contained in defendant's answer.

MULLEN, J. In this case the defendant has pleaded the statute of limitations, and now asks for an order requiring the plaintiff to reply to the plea, by specifying the grounds which he relies upon to defeat the operation of the statute.

The case is not one in which, by the Code of Procedure, the plaintiff is bound to reply, or the facts stated in the answer will be taken as admitted. But the application is made under section 153 of the Code, which provides that in cases other than where a counter-claim is set up in the answer, if the answer contains new matter constituting a defence by way of avoidance, the court may, in its discretion, on the defendant's motion, require a reply to such new matter.

The case before me is one in which the court has power to require a reply.

To introduce the practice of requiring a reply in all cases which may come within the terms of the clause of the section cited, is to multiply motions not only unnecessarily but unreasonably. In many,

2 Id. 266.

12 How. Pr. 355.

1 2 Kern. 165. 4 It is well settled in accordance with the decision in the principal case that the failure to set up an available defence to the pleading of one's adversary, is in legal effect a forfeiture of the defence forever. Life Ins. Co. v. Bangs, 103 U. S. 70; Reeve v. Jackson, 46 Ark. 272; Gorman v. Bonner, (Ark. 1906) 97 S. W. R. 282; Carpenter v. Oakland, 30 Cal. 442; Ruegger v. R. R. Co., 103 Ill. 449; Etna Co. v. Tremblay, (Maine, 1906) 65 Atl. R. 22; Tuttle v. Hamill, 85 N. Ca. 456; Bridge Co. v. Sargent, 27 Oh. St. 233; Roby v. Rainsberger, 27 Oh. St. 674; Peterson v. Thomas, 28 Oh. St. 596; Bell v. McColloch, 31 Oh. St. 397; Witte v. Lockwood, 39 Oh. St. 141 (semble); Kunneke v. Mapel, 60 Oh. St. 1, 7, 8; Mangest v. Brinkerhoff, 67 Oh. St. 472.- ED.

if not in most, cases, the defendant knows with reasonable certainty the answer which will be given to his defence; and there can be no reason for a motion to enable him to ascertain a fact of which he is already cognizant.

There are, however, very many cases in which the defendant may not know the answer which the plaintiff may make to the new matter in his defence because it may be matter affecting the plaintiff personally, or the business may have been transacted on the part of the defendant by an agent, or there may be, as in the case before me, a large number of answers which may be insisted on by way of reply to the new matter of the answer, all of which it would be unreasonable to require the defendant to prepare to meet on the trial, although the matter to be replied to may be presumed to be known to him personally.

The bar by reason of the running of the statute of limitations may be defeated in several different ways.

1. By the commencement of an action within the time limited.

2. By an attempt to commence such action as prescribed in § 99 of the Code.

3. By absence of defendant from the state when the right of action accrued.

4. If the plaintiff was under twenty-one years, or

5. Insane, or

6. Imprisoned on a criminal charge, or

7. A married woman.

8. Death of the person having the right of action before the time limited expired.

9. That the plaintiff was an alien, subject or citizen of a country at war with the United States.

10. Actions brought to judgment recovered, and reversed on appeal. 11. Stay by injunction.

12. A new promise.

To this last may be added others, unnecessary to enumerate; but the list is sufficiently formidable to show how difficult it may be in many cases to know on what ground the plaintiff intends to defeat the bar of the statute.

If there is any case in which it is proper to require a reply, it seems to me this is the one.

It was suggested by counsel that the defendant should be required to aver that he does not know the ground on which the plaintiff intends to rely to defeat the bar. While this may in some cases be very proper, yet in most instances the nature of the defence, and the manner in which the business was conducted out of which the action or defence accrued, will afford a much better guide in determining the propriety of requiring a reply. In this case I do not deem it essential.

Let an order be entered requiring the plaintiff to serve a reply to

the answer setting up the statute of limitations within twenty days from service of copy order; the costs of the order, $10, to abide event of the suit.1

1 A reply was ordered in the following cases: Gull Co. v. Keep, 6 Dak. 160, 167 (semble); Moore v. N. W. Co., (Mass. 1906) 78 N. E. R. 488 (semble); Jarvis v. Pike, 11 Abb. Pr. N. s. 398: Poillon v. Lawrence, 77 N. Y. 207; Brinkerhoff v. Brinkerhoff, 8 Abb. N. C. 207; McGine v. Torrence, 4 N. Y. M. L. Bull. 29; Schwan v. Mut. Assn., 9 N. Y. Civ. Pro. 82; Watson v. Phyfe, 20 N. Y. W. D. 372; Rogers v. Mut. Assn., 1 How. Pr. N. s. 194; Williams. Kilpatrick, 21 Abb. N. C. 61; Cavanagh v. Oceanic Co., 30 N. Y. St. Rep. 532; Winchester v. Browne, 25 Abb. N. C. 148; Steinway v. Steinway, 68 Hun, 430; Mercantile Bank v. Corn Bank, 73 Hun, 78; Cauchois v. Proctor, 79 Hun, 388; Hartford Bank v. Beinecke, 15 N. Y. Ap. Div. 470; Toplitz v. Garrigues, 71 N. Y. Ap. Div. 37; Seaton v. Garrison, (Ap. Div. Dec. 1906) 101 N. Y. S. 526; Wester v. Mut. Ass'n, 27 N. Y. Misc. Rep. 830; Timble v. Russell, 41 N. Y. Misc. Rep. 577; Jones v. Cohen, 28 N. Ca. 75, 80 (semble); Fitzgerald v. Shelton, 95 N. Ca. 519, 523 (semble); Code of Pro. S. Ca. 174.

The court declined to order a reply in the following cases: O'Gorman v. Arnoux, 63 How. Pr. 159; Schofield v. Demarest, 55 Hun, 254; N. Y. Co. v. Robinson, 25 Abb. N. C. 116; Avery. N. Y. Co., 6 N. Y. Supp. 547; Columbus Co. v. Ellis, 25 Abb. N. C. 150; Perls v. Metrop. Co., 15 Daly, 517; Voisin v. Mitchell, (N. Y. Ap. Div., Dec. 1905) 96 N. Y. S. 396.

In some jurisdictions a voluntary reply has been deemed improper. Connor v. Davies, 33 Ark. 56; Abbott v. Rowan, 33 Ark. 593; St. Louis Co. v. Higgins, 44 Ark. 293; Lusk v. Perkins, 48 Ark. 238; Gull Co. v. Keefe, 6 Dak. 160, 166; Avery v. N. Y. Co., 6 N. Y. Sup. 547; Dillon v. Sixth Av. Co., 46 N. Y. Super. Ct. 21; Davis v. Schmidt, 22 S. Ca. 128, 132. Replication dE INJURIA. Since the Statute of 4 & 5 Anne, c. 16, s. 4, permitting defendants to plead more than one plea to a single count, did not give plaintiffs the similar privilege of making more than one replication to one plea, it followed logically that a plaintiff could deny only one of several material allegations of his adversary's plea, if he would avoid the overruling of his replication upon a special demurrer for the formal defect of duplicity. But this hardship was largely removed by the device of the replication de injuria, which, while a comprehensive traverse, much like the general issue of the defendant, was still a single replication. The mass of learning connected with this replication, at one time of much practical importance, has become, by the general abolition of special demurrers for defects of form, well-nigh useless in most of our states. For this reason this topic is omitted from this edition. A full collection of the authorities upon this form of replication will be found in the writer's first edition of Cases on Pleading, Chapter iii, Section 4, pp. 143-184.

REJOINDERS And Subsequent PLEADINGS. By the common law, rejoinders and subsequent pleadings of the parties are governed by the same rules as pleas and replications. The common law rule is still in force in many of our states. For illustrations see Miller v. Hoe, 1 Fla. 189; Livingston v. Anderson, 30 Fla. 117, 125; Rutherford v. Tevis, 5 Ind. 530; Pegram v. McCorinack, 14 Iowa, 141; Bullitt's Civ. Code, Ky. 1895, §§ 99, 100; Cumb. Co. v. Slack, 45 Md. 161; Att'y-Gen. v. McQuade, 94 Mich. 439; Lewisburg Co. v. Steer, 77 Pa. 332 (semble); Hinchy v. Foster, 3 McC. 428; Wilkinson v. Bennett, 3 Munf. 314; Totty v. Donald, 4 Munf. 430; South Co. v. Daniel, 20 Gratt. 344; Huffman v. Alderson, 9 W. Va. 616, 634.

In England the privilege of pleading a rejoinder or any subsequent pleading must be obtained, as in the case of a replication, by leave of the court. Bullen & Leake, Prec. Pl. (6th ed.); 547 n.; Monck v. Smythe, [1895] 1 Ir. 200. In some jurisdictions an affirmative reply is deemed to be denied without any rejoinder, as in Kansas. Board v. Shaw, 15 Kan. 33; Continental Co. v. Pearce, 39 Kan. 396; Hughes v. Durein, 3 Kan. App. 63. In general, it may be said, that the rules applicable to replications hold as to rejoinders and subsequent pleadings in the states which permit any pleadings after the reply. - ED.

CHAPTER VIII.

DEPARTURE.

ANONYMOUS.

IN THE COMMON PLEAS, TRINITY TERM, 1566.

[Reported in Dyer, 253, placitum 101.]

A LEASE was made by indenture for years without impeachment of waste, and one covenant was, that the lessee at every felling of wood should make a fence to save the spring; and he was bound for the performance of the covenants. And in debt on bond he pleaded the indenture, and to the said covenant pleaded that he had not felled any wood, &c. And the plaintiff showed the felling of two acres of wood, and that the defendant did not make any fence to save the spring, and the defendant rejoins, that he made a fence, &c., and of that he puts himself upon the country; and the aforesaid plaintiff does the like, therefore let twelve, &c. And this was holden a jeofail and departure; and the jury at the bar discharged for this in the Bench.1

VERE v. SMITH.

IN THE KING'S BENCH, EASTER TERM, 1671.

[Reported in 2 Levinz, 5.2]

DEBT upon an obligation, by the plaintiff a brewer, against the defendant his clerk, conditioned to perform covenants, to account for all sums of money he should receive. Defendant pleads covenants performed. The plaintiff replies, That such a day £26 came to his

1 Co. Lit. 304 a; Fulmerston v. Steward, Plowd. 105; Palmer v. Stone, 2 Wils. 96; Hickman v. Walker, Willes, 27; Ellis v. Rowles, Willes, 638; Meyer v. Haworth, 8 A. & E. 467; Nevile v. Boyle, 11 M. & W. 26; McAden v. Gibson, 5 Ala. 341; Harper v. Hampton, 1 H. & J. 453; State v. Dorsey, 3 G. & J. 75; Dawes v. Winship, 16 Mass. 291; Sibley v. Brown, 4 Pick. 137; Hapgood v. Houghton, 8 Pick. 451; Gildart v. Howell, 2 Miss. 198; Fiser v. M. & T. R. R., 32 Miss. 359; Vanzant v. Shelton, 40 Miss. 332; Tarleton v. Wells, 2 N. H. 306; Moore v. Stevens, 42 N. H. 404; Munro v. Alain, 2 Cai. 320; Andrus v. Waring, 20 Johns. 153; Griswold v. Ins. Co., 3 Cow. 96; Benjamin v. DeGroot, 1 Den. 151; Lindsay v. Jamison, 4 McC. 93; Houghton v. Jewett, 2 Tyl. 183 Accord. — ED.

2 1 Vent. 121, 2 Keb. 761, 779, 830 s. c.—)
- ED.

hands, for which he has not accounted. The defendant rejoined, That he accounted modo sequente, viz., That certain malefactors broke into his counting-house and stole it, wherewith he acquainted the plaintiff et hoc paratus est verificare; upon which the plaintiff demurred. And now it was argued, That the rejoinder is a departure, for fulfilling a covenant to account cannot be intended but by actual accounting; whereas the rejoinder does not show an account, but an excuse for not accounting.

Cur' contra. This is an account, and no departure. Adjournatur. But after in Trinity term the demurrer was waived, and issue taken upon the robbery.

OWEN AND ANOTHER v. REYNOLDS.

IN THE KING'S BENCH, MICHAELMAS TERM, 1732.

[Reported in Fortescue, 341.]

DEBT on bond conditioned to save harmless from tonnage of coals due to William Biddle. Defendant pleads non damnificat.; plaintiff replies that Biddle distrained for said coals, and defendant rejoins that nothing was due to Biddle for tonnage; this held to be a good rejoinder and no departure, for it fortifies the plea, and gives a good reason why he was not damnified.1

LEGG v. EVANS AND WHEELTON.

IN THE EXCHEQUER, HILARY TERM, 1840.

[Reported in 6 Meeson & Welsby, 36.]

TROVER against the defendants, as sheriff of Middlesex, to recover the value of certain pictures and picture-frames, of which the declaration stated that the plaintiff was "lawfully possessed as of his own property."

1 But a rejoinder that the plaintiff was injured by his own wrong is a departure, Richards v. Hodges, 2 Saund. 83, as is a rejoinder that the defendant had no notice of the damage. Cutler v. Southern, 1 Saund. 116, 1 Lev. 194 s. c.

If to a count upon a bond conditioned to perform an award, the defendant pleads no award, and then to a replication setting out the alleged award, rejoins, showing that the alleged award was not pursuant to the submission, and so not a legally binding award, his rejoinder is not a departure according to the following cases: Fisher v. Pimbley, 11 East, 188; Young v. Beck, 1 C. M. & R. 448; Hickes v. Crackwell, 3 M. & W. 72; Gisborne v. Hart, 5 M. & W. 50; Allen v. Watson, 16 Johns. 205.

But see contra, — Anon. Keilw. 175 a ; Skinner v. Adams, 1 Lev. 245; House v. Launder, 1 Lev. 85; Morgan v. Man, 1 Lev. 127; Garrett v. Weeden, 1 Lev. 133; Roberts v. Marriett, 2 Saund. 188; Harding v. Holmes, 1 Wils. 122; Praed v. Duchess, 4 T. R. 585; s. c. 2 H. Bl. 250 (semble); Joy v. Simpson, 2 N. H. 179; Barlow v. Todd, 3 Johns. 367. — ED.