9 Meadows v. Hawkeys Ins. Co. 62 Iowa, 387.

10 Meyer v. Binkleman, 5 Colo. 262: Riddle r. Parke, 12 Ind. 89; State v. Williams, 48 Mo. 210; Ferris v. Johnson, 27 Ind. 247; Ferguson 2. Tutt, 8 Kan. 370; Corry v. Campbell, 25 Ohio St. 134; Heath v. White, 3 Utah, 474.

11 Hoffman v. Gordon, 15 Ohio St. 212.

12 Hoisington v. Armstrong, 22 Kan. 110.

13 Bartholow v. Campbell, 56 Mo. 117.

14 Henslee v. Cannefax, 49 Mo. 295; Meader v. Malcolm, 78 Mo. 550; Simmons v. Carrier, 68 Mo. 421. An answer averring conclusions of law from facts already stated in the complaint or petition does not set up new matter, and does not require a reply: State v. Williams, 77 Mo. 463.

? 104. Form of. — Under Codes which require a reply to all material allegations of new matter in the answer, the reply may consist either of denials or of new matter set up in avoidance of the answer. Or under Codes which make a reply necessary only when the answer contains new matter constituting a counter-claim, the plaintiff may reply thereto either by denials or by the statement of new matter in confession and avoidance.? In either case, as generally provided, the plaintiff may deny generally or specifically, each allegation controverted by him, or any knowledge or information thereof sufficient to form a belief;3 and he may allege, in ordinary and concise language, any new matter not inconsistent with the complaint or petition, constituting a defense to such new matter or counter-claim in the answer. A reply must be distinct and specific, so that it may be clearly seen what is controverted. But a reply which denies all those allegations which are contained within certain specified folios is held to be good. A reply setting up facts inconsistent with the answer amounts to a direct denial of it.' But a reply denying that the defendant is entitled to the sum he claims for damages, or to any other sum, is bad. It is not the province of a reply to introduce new causes of action. And setting out the cause of action a second

time, or a new assignment of it, is not allowable under Code pleading. 10 And since a reply can only respond to the new matter set up in the answer, the omission of necessary averments in the complaint or petition cannot be cured by the reply." A denial by the plaintiff in his reply, upon information and belief, of allegations in the defendant's answer, is insufficient where the facts set up in the answer are clearly within the plaintiff's knowledge, as appears by the averments in the complaint.12 A reply may contain two or more distinct avoidances of the same defense or counter-claim, but they must be separately stated and numbered.13

1 See Ind. Code Civ. Proc. 67; Kimberlin v. Carter, 49 Ind. 111; Kan. Code Civ. Proc. 102; Netcott v. Porter, 19 Kan. 131; Payne v. Briggs, 8 Neb. 75; Snodgrass v. Hunt, 15 Ind. 274; Clapp v. Cunningham, 50 Iowa, 307; Ridenour v. Mayo, 29 Ohio St. 138.

2 N. Y. Code Civ. Proc. 514. See Chowriteau v. Fay, 54 How. Pr. 211; Johnson v. White, 6 Hun, 587; Argotsinger v. Vines, 82 N. Y. 308; Metrop. Life Ins. Co. v. Meeker, 85 N. Y. 614. An answer of payment, in whole or in part, is not a counter-claim, and an omission to reply is not an admission that the payments were made: Scott v. Stockwell, 65 How. Pr. 249. And see Kirk v. Woodbury Co. 55 Iowa, 190. A general denial in a reply does not permit the plaintiff to prove an affirmative defense to the counter-claim: McClendon v. Wells, 20 S. C. 514.

3 See Ohio Code Civ. Proc. 101; N. Y. Code Civ. Proc. ? Wing v. Dugan, 8 Bush, 583.

2514;

4 Ohio Code Civ. Proc. 101; N. Y. Code Civ. Proc. 514. And see Hammer v. Edwards, 3 Mont. 187.

5 Risley". Caryl, 1 N. Y. Month. Law Bull, 52; Mattison v. Smith, 19 Abb. Pr. 288; 1 Robt. 706. New matter must be specially pleaded in the reply, as in the answer: Kimberling v. Hall, 10 Ind. 407.

6 Gassett v. Crocker, 9 Abb. Pr. 39. And see McConnoughey v. Weider, 2 Iowa, 408. Compare Leyde v. Martin, 16 Minn. 38.

7 Meredith v. Lackey, 14 Ind. 529.

8 McKensie v. Farrell, 4 Bosw. 192. A reply which avers nothing in denial or avoidance of matter set up in the answer is bad on demurrer: Chrisman v. Chenowith, 81 Ind. 401.

9 Durbin v. Fisk, 16 Ohio St. 533; School District v. Caldwell, Sup. Ct. Neb. 19 N. W. Rep. 634; 16 Neb. 68.

10 Shull v. Green, 34 How. Pr. 418; 49 Barb. 311; Stewart v. Wallis, 30 Barb. 344.

11 Bernheimer v. Marshall, 2 Minn. 78: Webb r. Bidwell, 15 Minn. 479. A reply cannot change or enlarge the character of the action stated in the complaint, or the rights or remedies of the plaintiff: Hatch v. Coddington, 32 Minn. 92.

12 Fallon v. Durant, 60 How. Pr. 178. See Wing ". Dugan, 8 Bush, 583.

13 N. Y. Code Civ. Proc. 517. It seems that a plaintiff cannot, in his reply, plead an independent counter-claim to a counter-claim set up by the defendant: See Cohn v. Husson, 24 N. Y. Daily Reg. No. 143; 66 How. Pr. 150; Hall. Hall, 30 How. Pr. 51. 56; Breed v. Padgett, 14 N. Y. Week. Dig. 574; Ormsbee v. Brown, 50 Barb. 436. But compare Miller . Losee, 9 How. Pr. 356; Reilly v. Rucker, 16 Ind. 303; House . McKinney, 54 Ind. 240. In an action of a legal nature an equitable reply is available to defeat a legal defense: Wadsworth v. Lyon, 93 N. Y. 201

2105. Departure. -Statements in a reply not constituting a departure, that is, not inconsistent with the complaint or petition, whether they be denominated new matter or matter in avoidance, are permissible.1 But if there is an inconsistency between the reply and the case as made in the complaint or petition, it is a departure, advantage of which may be taken by demurrer. It is a departure where the complaint alleges a direct undertaking by the defendant, and the reply charges a guaranty only.3 So a reply showing that the plaintiff is a trustee, and has no right to maintain the action in the individual capacity in which he sues, is faulty as a departure. So a plaintiff is entitled to recover only on the causes of action set out in his complaint or petition, and if he seeks to introduce new causes of action in his reply it is a departure. But where the complaint alleged ownership of stock in the plaintiff, and the reply set up a special ownership as pledgee, this was held not a departure, the action being for damages against a corporation for refusing to transfer the stock on its books.

1 Lebanon Min. Co. v. Consolidated Rep. Min. Co. 6 Colo. 371; Fanning v. Hibernia Ins. Co. 37 Ohio St. 344; Benson v. Stein, 34 Ohio St. 294; Suman v. Inman, 3 Mo. App. 596. See Thomas v. Loaners' Bank, 6 Jones & S. 466, 470; Campbell v. Mellen, Sup. Ct. Wis. 21 N. W. Rep. 864.

2 Suman v. Inman, 3 Mo. App. 596; Laws y. Carrier, 2 Cin. Rep. 80; Newcomb . Weber, 1 Cin. Rep. 12; Beard v. Hand, 88 Ind. 183. Where the reply is a departure in pleading, it is bad on demurrer for the want of sufficient facts: Haas . Shaw, 91 Ind. 384. A bad reply is a good enough reply to an insufficient answer, and a demurrer to

such reply ought to be carried back and sustained to such answer: Wilhite v. Hamrick, 92 Ind. 594. Irrelevant matter in a reply can be reached only by motion: Ludington v. Slauson, 6 Jones & S. 81.

3 Philibert v. Burch, 4 Mo. App. 470. And see Magruder v. Admire, 4 Mo. App. 133.

4 Laws v. Carrier, 2 Cin. Rep. 80. And see White v. Miles, 11 How. Pr. 36.

5 Durbin v. Ward, 16 Ohio St. 533; School District v. Caldwell, Sup. Ct. Neb. 19 N. W. Rep. 634; Burdell v. Denig, 15 Fed. Rep. 397.

6 Merchants' Nat. Bank ". Richards 6 Mo. App. 454. See Waters v. Reuber, 16 Neb. 99; School District v. McIntie, 14 Neb. 46.

? 106. In particular cases.— A reply to the Statute of Limitations is required to be definite and explicit, and the party relying upon the defense of the statute should be apprised of the issue to be made upon it, whether it be one of denial or avoidance. When the complaint in an action states facts from which, though the original claim was barred by the statute, a new promise may be inferred, and the answer alleges that no cause of action on the contract sued on accrued within six years next before the bringing of the suit," this averment need not be denied in a reply. But when the complaint simply sets out the original contract, and the answer relies upon the statute, then the answer must be met by a reply setting up the facts which imply the new promise.3 A reply to an answer of discharge in bankruptcy, which seeks to avoid the discharge upon the ground that the debt sued on was created by the fraud of the bankrupt, must aver the facts which constitute actual fraud involving intentional wrong. But it is held in New York, that an answer of discharge in bankruptcy may be met by proof of the fraud, and this without serving a reply, unless a reply has been directed by the court as provided by the statute. But where the discharge is relied on by the plaintiff as a bar to a counter-claim set up by the defendant, it should be pleaded by reply.“ In an action to determine adverse claims to real estate,

the defendant having, by answer, asserted a legal title in himself, the plaintiff may, in reply, plead facts showing an equitable title in the plaintiff of such a nature that it should prevail over the alleged title of the defendant." In an action for divorce on the ground of adultery, an answer setting up counter-charges of adultery against the plaintiff, and asking a divorce in favor of the defendant, is to be regarded as setting up a counter-claim requiring a reply. In an action for dower, the defense was that a divorce had been granted against the plaintiff, and it was held that a motion to compel a reply should be granted. In an action to recover money due under a contract for the purchase of land, the answer alleged that the contract and a deed of the premises together constituted a mortgage given to secure a usurious loan, and asked that they be declared void, and it was held that the answer contained matter constituting a counterclaim which required a reply.10 In New York, no reply is required to the defense of a release, unless directed by special order of the court; 11 nor does a defense of set-off need a reply; 12 so when an answer sets up that the plaintiff is not the real party in interest, a reply is not necessary.13 In Wisconsin, the defense of the Statute of Limitations is not a counter-claim, and need not be replied to; 14 so an estoppel in rebuttal of a defense is provable without pleading it by reply to the answer. 15 1 Jarvis v. Pike, 11 Abb. Pr. N. S. 398.

2 Buckingham v. Orr, Colo. Sup. Ct. 4 Colo. L. R. 88.

3 Buckingham v. Orr, Colo. Sup. Ct. 4 Colo. L. R. 88. And see Hexter v. Clifford, 5 Colo. 168; Smith v Hall, 19 Cal. 85; Clark v. Atkinson, 2 Smith, E. D. 112; Watkins v. Stevens, 4 Barb. 168; Cutler v. Wright, 22 N. Y. 472; Conkey v. Barbour, 22 Ind. 196; Woodward v. Sloan, 27 Ohio St. 596; Clinton v. Eddy, 37 How. Pr. 23; 54 Barb. 54; 1 Lans. 61; Williams v. Willis, 15 Abb. Pr. N. S. 11.

4 Hamilton v. Reynolds, 88 Ind. 191.

And see Hun v. Compare Freund

5 Argall v. Jacobs, 87 N. Y. 110; 21 Hun, 114. Cary, 82 N. Y. 65; Talcott v. Harris, 18 Hun, 567. v. Paten, 10 Abb. N. C. 311; Welsh v. German-American Bank, 10 Jones & S. 462.