a replication to all new matter alleged in the answer, the plaintiff may have judgment without a replication, if the new matter states no defense.20

§ 731. Departure from complaint.-A replication must not depart from the cause of action stated in the complaint; if it does so, the plaintiff cannot recover upon it.27

§ 732. Practice in California.-In California, there is no such practice as pleading a counterclaim to a counterclaim. But the plaintiff may have the benefit of a counterclaim to defendant's counterclaim without pleading it, as he has no opportunity of doing so.28 In Indiana, if the defendant pleads a counterclaim in his answer, the plaintiff may reply a counterclaim to it.29 The replication may introduce new matter to explain and fortify the complaint without a departure.30 It has been held, in the United States circuit court, that the practice now is, where the plaintiff finds it necessary, from the answer, to prove new matter, to amend the bill. Nevertheless, if a special replication containing the essential qualities of a general replication is filed, denying all the material parts of the answer, and also charging new matter, it will be considered as surplusage at the hearing. A departure in pleading is not allowed in equity. If the answer requires a new case to be made, it cannot be done in the replication, but must be by an amendment to the bill.32

31

§ 733. To plea of bankruptcy.-A replication setting forth, in the words of the act, all the grounds on which a discharge would be void by the act is bad; it must specify the particular fraud relied on.33

§ 734. To plea in bar.-Though in England a court of law protects the title of an equitable owner of a chose in action, sued

26 Babcock v. Maxwell, 29 Mont. 31, 74 Pac. 64.

27 Messenger v. Woge, 20 Colo. App. 275, 78 Pac. 314; Baldridge v. Leon Lake etc. Co., 20 Colo. App. 518, 80 Pac. 477; Flannery v. Campbell, 30 Mont. 172, 75 Pac. 1109; Zorn v. Livesley, 44 Or. 501, 75 Pac. 1057; Gill v. Basell, 38 Wash. 212, 80 Pac. 437.

28 Hart v. Cooper, 47 Cal. 78. Whether a plaintiff may interpose in

his reply a counterclaim to the counterclaim of the defendant, compare Miller v. Losee, 9 How. Pr. 356: Stewart v. Travis, 10 How. Pr. 148. 29 House v. McKinney, 54 Ind. 240. 80 Hallett v. Slidell, 11 Johns. 56. 81 Duponti v. Mussy, 4 Wash. C. C. 128, Fed. Cas. No. 4185.

32 Vattier v. Hinde, 7 Pet. 252, 8 L. Ed. 675.

96.

33 Service v. Heermance, 2 Johns.

on in the name of the legal owner, by refusing to receive a plea which is in fraud of his rights, yet they will not allow these rights to be shown by way of replication to what is a good plea in bar of the action of the plaintiff, nor admit them to be relied on at the trial. The law of the United States courts is otherwise; and the proper practice is to reply to the equitable title and give notice thereof to the defendant, and thus show the asserted bar to be in fraud of his rights; and when thus shown, the bar is adjudged insufficient.34

§ 735. To plea in avoidance.-No replication is needed to a plea in avoidance, all such facts being deemed denied, and the plaintiff may prove facts not pleaded in avoidance of the plea of defendant.35

§ 736. To plea of former recovery.-Plaintiff replied protestando that in a former action two trespasses had been joined in the same count, and the court, on notice, compelled him to elect for which he would proceed, and that he should not go for both; and the jury found damages accordingly. It was held that the former recovery was no bar, but the replication was bad. as being argumentative, instead of traversing and denying the former recovery. A replication to a plea of a former recovery that the evidence was wholly insufficient to establish the claim, or that no evidence was offered or received by the court, will not avoid the bar.37

36

§ 737. To plea of fraud. In an action on a note the plea was that the note was given by the defendant to the plaintiff in payment for land which the defendant had been induced to buy of him by his false and fraudulent representations that he was the owner of it; it was held that fraud was the material allegation, and a replication denying the fraudulent representation was a perfect answer. 38 But an averment in reply, that plaintiff cannot obtain sufficient information upon which to base a belief, is in fact an admission, since he is presumed to know

34 L'Invincible, 1 Wheat. 238, 4 L. Ed. 80; Corser v. Craig, 1 Wash. C. C. 424, Fed. Cas. No. 3255; Briggs v. Dorr, 19 Johns. 95; Warren v. Emerson, 1 Curt. C. C. 239, Fed. Cas. No. 17195.

35 Plyer v. Pacific Portland Cement Co., 152 Cal., 125, 92 Pac. 56. 36 Snyder v. Croy, 2 Johns. 227. 37 Ramsey v. Herndon, 1 McLean, 450, Fed. Cas. No. 11546.

38 Bradner v. Demick, 20 Johns. 404.

39

what he said and did. If the maker of a note pleads a set-off, and that the paper was fraudulently transferred to the plaintiff to prevent the set-off, a replication merely alleging legal title admits the fraudulent transfer and the set-off.4°

§ 738. To plea of judgment.-If a defendant pleads judgment and no assets ultra, replication thereto may either be nul tiel record, or assets ultra, or per fraudem, or other matters of fact; and such replications are probably triable by jury." Where a judgment is pleaded in bar of an action, a reply setting forth facts showing that the judgment was fraudulently obtained is a sufficient replication to the plea, under Colorado practice. 42 If the plea avers that the promise sued on was a promise to pay the debt of another,-to-wit, B.,-a replication that the promise was not a promise to pay the debt of said B. is good.13

44

§ 739. To plea of justification.-A replication neither answering nor aiding the matter of a special plea of justification is bad." In trespass, where the defendant pleads in justification a simple reference to a statute, the plaintiff must reply de injuria propria.45 The general replication de injuria sua propria absque tali causa is bad when the defendant insists on a right, and is good only when he insists on matters of excuse." 46 In a plea justifying an arrest under process, an allegation of its loss, by way of an excuse for not producing it, does not turn the justification into matter of excuse; and a replication may protest the warrant, and conclude de injuria, etc.48 The general replication de injuria to a plea of millitur manus imposuit puts in issue every material allegation, including the reasonableness of the force, and the plaintiff may recover, if an excess of force is shown.19

§ 740. To plea of payment.-When the answer in a suit on a bill of exchange sets up payment, part in money and the residue.

30 Mastin v. Bartholomew, 41 Colo. 328, 92 Pac. 682.

40 Savage v. Davis, 7 Wend. 223. 41 Teasdale v. Brantons, 2 Hayw. (N. C) 377, Fed. Cas. No. 13813.

42 Hallack v. Loft, 19 Colo. 74, 34 Pac. 568.

43 Hotchkiss v. Ladd, 36 Vt. 593, 86 Am. Dec. 679.

44 Foshay v. Riche, 2 Hill, 247.
45 Comly v. Lockwood, 15 Johns. 188.
P. P. F. Vol. I-29

46 Cooper v. Monke, Will. 54; Jones v. Kitchin, 1 Bos. & P. 76; Lytle v. Lee, 5 Johns. 112; Plumb v. M'Crea, 12 Johns. 491; Allen v. Crofoot, 7 Cow. 46; Griswold v. Sedgwick, 1 Wend. 126; Tubbs v. Caswell, 8 Wend. 129.

47 Coburn v. Hopkins, 4 Wend. 577. 48 Stickle v. Richmond, 1 Hill, 77. 49 Bennett v. Appleton, 25 Wend. 371.

51

in bills of exchange, which, it is averred, were received by the plaintiff in payment, a replication which simply avers the nonpayment of the bills and the insolvency of the drawers and drawees at their maturity, tenders an immaterial issue, and the finding should be for the defendant, upon the pleading.50 Reply is unnecessary to an answer pleading merely payment. In an action for wages, where the answer sets up a settlement and discharge as a defense, no reply is necessary.52 In Oregon, a plea of payment in an answer is new matter, which, not being denied by the reply, stands admitted.53 An answer for a defense, for the demand sued demand sued for, averred that the defendant had paid certain sums to plaintiff, and concluded with a notice. that defendant would insist on the sums so paid as a counterclaim, and a demand for judgment; it was held that this did not set up a counterclaim, but the facts pleaded amounted to the defense of payment only, and therefore no reply was necessary.54

§ 741. To plea of performance.-A replication to a plea of general performance, in an action on a bond, should assign a special breach. An omission to do so must be taken advantage of by demurrer, and is cured by verdict.55

§ 742. To a plea of privilege by an attorney, it is a good replication that for a year he had ceased to practice."

§ 743. To a plea of usury.-The plaintiff may reply that it was not corruptly agreed, in manner and form, etc., without a traverse, and with a conclusion to the country.57

§ 744. Facts must be alleged.-Where the statute of limitations is pleaded at law or in equity, and the plaintiff desires to bring himself within its savings, he must, in his replication, or by an amendment to his bill, set forth the facts specially.58 To an answer setting up the six years' statute of limitations, a reply,

50 Frisbee v. Lindley, 23 Ind. 511 51 Bracket v. Wilkinson, 13 How Pr. 102.

52 Maricle v. Brooks, 5 N. Y. Supp 210, 51 Hun, 638.

53 Benicia Agric. Works v. Creigh ton, 21 Or. 495, 28 Pac. 775, 30 Pac. 676.

54 Burke v. Thorn, 44 Barb. 363.
55 Minor v. Mechanics' Bank of

Alexandria, 1 Pet. 46-70, 7 L. Ed. 47. 56 Brooks v. Patterson, Cole. & C. Cas. 133.

57 Buynham v. Matthews, 2 Stra. 871; Waterman v. Haskin, 7 Johns. 283.

58 Miller v. McIntyre, 6 Pet. 61, 8 L. Ed. 320; affirming 1 McLean, 85, Fed. Cas. No. 9582; Piatt v. Vattier, 9 Pet. 405, 9 L. Ed. 173; Taylor v.

in general terms, that the defendant has made payments on the claim within six years, is sufficient without pleading the particulars.5 Under California practice, when a defendant pleads the statute of limitations, matters upon which the plaintiff relies to relieve him from the bar of the statute are deemed to have been pleaded in reply to the answer.60

$ 745. Facts must be traversed. In the correct order of pleading, it is necessary that the facts of the plea should be traversed by the replication, unless matters in avoidance be set up. It is not sufficient that the facts alleged in the replication are inconsistent with those stated in the plea; an issue must be taken on the material allegations of the plea."1

§ 746. Fraud as a reply.-Fraud is a sufficient answer to the plea of the statute of limitations; and if the defendant fraudulently seized the notes, he is not only estopped from setting up the statute, but it would begin to run only from the discovery of the fraud.62

64

63

§ 747. Insufficient reply.-A replication to a plea of the statute of limitations that the plaintiff lives in another state, there being no such exception in the statute, is bad. To a plea of the statute of limitations, it is not a good replication that a suit for the same demand was commenced in a court in another state, and discontinued within six years. When the plea avers that the causes of action mentioned in the declaration did not, nor did either of them, accrue within six years, a replication which alleges that said causes of action, or some of them, did accrue within six years, is bad for uncertainty. A replication of a new promise by the executor, to his plea of the statute of limitations, to a count on the promise of the testator, is bad for departure. In general, a replication must not depart.

66

Benham, 5 How. 233, 12 L. Ed. 130; Marsteller v. McClean, 7 Cranch, 156, 3 L. Ed. 300.

59 Board etc. v. Cole, 8 Ind. App. 485, 36 N. E. 47.

60 Fox v. Tay, 89 Cal. 339, 23 Am. St. Rep. 474, 24 Pac. 855, 26 Pac. 897.

61 United States v. Buford, 3 Pet. 12, 7 L. Ed. 585; Jones v. Hays, 4 McLean, 521, Fed. Cas. No. 7467.

65

62 Bricker v. Lightner's Ex., 40 Pa. St. 199.

63 Jones v. Hays, 4 McLean, 521, Fed. Cas. No. 7467.

64 Delaplaine v. Crowninshield, 3 Mason, 329, Fed. Cas. No. 3756.

65 Hotchkiss v. Ladd, 36 Vt. 593, 86 Am. Dec. 679.

68 Benjamin v. De Groot, 1 Denio,

151.