to be insufficient, and he withdraws that replication and substitutes a new one, the substituted one being complete in itself, not referring to or making part of the one which preceded,-he waives the right to question in the supreme court the decision of the court below on the sufficiency of what he had first replied. The same is true when he abandons a second replication, and with leave of the court files a third and last one.113

FORMS IN REPLICATION.

§ 762. Demurrer to answer.

[TITLE.]

Form No. 237.

The plaintiff demurs to the answer of the defendant [or the irst or other defense or counterclaim contained in the answer of the defendant], for insufficiency, in not stating facts sufficient to constitute a defense [or counterclaim, or state other statutory ground].

The plaintiff replies to the counterclaim contained in the answer of the defendant [or the first or other counterclaim contained in the answer of the defendant].

I. That, etc. [denying as in an answer].

The plaintiff replies to the answer of the defendant:

I. That he denies each and every allegation contained in the [second] defense.

II. [Or, as to the (second) defense, by way of counterclaim set forth in the answer, he denies each and every allegation therein.]

118 Clearwater v. Meredith, 1 Wall. 25, 17 L. Ed. 604.

The plaintiff replies to the answer of the defendant:

That he denies [here insert the particular allegation denied].

766. Reply interposing both denial and new matter.

[TITLE.]

Form No. 241.

The plaintiff replies to the answer of the defendant herein: First. For a first reply to the [first] counterclaim:

Ile denies each and every allegation of the answer respecting the same.

Second. For a second reply to said counterclaim he alleges: That at the time alleged in the complaint as the time of making the supposed note therein mentioned, this plaintiff was under the age of twenty-one years, to-wit, of the age of . .

The plaintiff replies to the answer herein:

That the said cause of action alleged for a counterclaim [or demand alleged as a set-off] in said answer did not accrue at any time within years next before the commencement of

this action.

The defendant demurs to the plaintiff's reply [or first or other reply], for insufficiency, in not stating facts sufficient to constitute a reply.

769. Notice of motion for judgment for defendant on failure to reply to counterclaim.

Form No. 244.

Take notice, that the defendant will apply to this court, at in the city of . . ., on the . . . day of 19.., at...

...

o'clock in the . . . noon, of said day, or as soon thereafter as counsel may be heard, for an order that, for want of a reply or demurrer on the part of the plaintiff to defendant's counterclaim, the said defendant have judgment against the plaintiff for ... dollars [or, pursuant to the prayer of the answer of said defendant], with costs of the action and of this motion, and for such other relief as may seem just.

§ 770. Order for judgment for want of reply.

[TITLE]

Form No. 245.

The defendant's answer herein, setting up a counterclaim, having been duly served on the plaintiff more than twenty days since, and no reply or demurrer having been interposed by the plaintiff:

Ordered, that judgment be entered herein in favor of the abovenamed defendant against the above-named plaintiff for the sum of . . . dollars [or state other relief sought], besides the costs and disbursements of this action, together with ten dollars costs. of this motion.

[Or, in case reference or assessment of damages by a jury is necessary:] Ordered, that the defendant have judgment against the plaintiff for the damages sustained on account of the cause of action set forth in the counterclaim, with costs, [in replevin, add] and that he recover the possession of the personal property described in the complaint, or the value thereof, in case a delivery cannot be had.

And further ordered, that it be referred to R. F., Esq., of . . ., to take proof of the demand alleged in the counterclaim [or, specify the particular inquiry to be made], and to examine the defendant or his agent on oath respecting any payments that have been made to the defendant, or his agent for his use, and to report to the court with all convenient speed.

[Or, Ordered that the damages sustained by the defendant by reason of the matters alleged in the counterclaim be assessed by a jury under the direction of the court.]

Dated . . ., 19..

O. P., Judge.

The defendant in this action, having duly served his answer on the . . . day of . . . last, setting up a counterclaim to the plaintiff's cause of action, and the plaintiff having failed to reply or demur thereto; now, on motion of M. N., for defendant:

It is adjudged, that said defendant recover of the said plaintiff the sum of . . . dollars, together with his costs and disbursements, herein taxed at . . . dollars, amounting in all to the sum of . . . dollars.

On reading and filing the pleadings herein, and notice of this motion, [and proof of due service], and on motion of G. H., for the defendant, after hearing E. F., [or, no one appearing] in opposition:

Ordered, that the plaintiff reply to the new matter by way of avoidance, contained in the answer herein, within twenty days from service of a copy of this order.

CHAPTER XXXI.

SUPPLEMENTAL PLEADINGS.

§ 773. In general.-Either plaintiff or defendant may be allowed, on motion, to file a supplemental complaint or answer, alleging facts material to the case which have arisen after the former complaint or answer was filed. While a new cause of action may not be alleged in a supplemental complaint, different or additional relief which is consistent with the original cause of action stated may be asked for therein.2 The New York code permits also a statement of facts in a supplemental pleading, of which the party was ignorant at the time the original pleading was made. However, facts which existed at the commencement of the action, but which were then unknown to the pleader, but afterward came to his knowledge, were always proper to be alleged in an amended pleading. This section. includes among the matters which may be alleged in a supplemental pleading the judgment or decree of a competent court rendered after the commencement of the action, determining the matters in controversy, or a part thereof. Such matters could doubtless be pleaded under the comprehensive language. of the California code.

4

Though the right to file a supplemental pleading rests in the discretion of the court, and an order granting or refusing leave to file is not appealable, yet it is an "intermediate order," which may be reviewed on appeal, by California practice. At common law the right of the defendant to avail himself of matters of defense, arising after the commencement of the suit, was as ample, perhaps, as under the code. But the plaintiff had no corresponding right. In courts of equity, however, the plaintiff could avail himself of matters arising after the filing of the bill, by a supplemental bill; at law, matters of defense arising after the commencement of the suit, but before plea or continuance was pleaded, not in bar of the suit generally, but to the further

1 Cal. Code Civ. Proc., § 464.

2 Melvin v. E. B. & A. L. Stone Co., 7 Cal. App. 324, 94 Pac. 389.

3 Medbury v. Swan, 46 N. Y. 200.

4 McDaniels v. Gowey, 30 Wash. 412, 71 Pac. 12.

5 Code Civ. Proc., § 956.

• Story's Eq. Pl., ch. 8.