6 Raymond v. Baker, 66 Barb. 605.

7 School District v. Wrabeck, 31 Minn. 77. And see State v. Bachelder, 5 Minn. 178; Walton v. Perkins, 28 Minn. 413.

8 Leslie v. Leslie, 11 Abb. Pr. N. S. 311.

9 Brinkerhoff v. Brinkerhoff, 8 Abb. N. C. 207.

10 Geenia v. Keech, 66 Barb. 245. Compare Westervelt v. Ackley, 2 Hun, 258; 62 N. Y. 505.

11 Dambmann v. Schulting, 4 Hun, 50.

12 American Dock etc. Co. v. Staley, 8 Jones & S. 539.

13 Johnson v. White, 6 Hun, 587.

14 Merriam v. Field, 24 Wis. 640.

15 Gans v. Insurance Co. 43 Wis. 108; Waddle v. Morrill, 26 Wis. 6:1.

3

2107. Waiver of. Where the facts alleged by way of defense in an answer are not denied in the reply, and the case proceeds to trial upon the evidence as if such facts were denied, without objection or exception, the want of a reply will be deemed waived. An affirmative answer, where the case has been tried without a reply, will be deemed to have been controverted on the trial, in the same manner as if a reply in denial had been filed; the fact that there is no reply in such case will not be taken as an admission of the new matter in the answer, and the judgment will not be reversed for want of a reply. So if the parties go to trial without a reply to one of several paragraphs of answer, all of which are affirmative, such reply is waived, and the defendant has the burden of proving that paragraph.5 So, although a counter-claim is taken to be true unless replied to, yet where an answer sets up a counter-claim to which there is no reply, and the trial proceeds as if every matter contested by the parties was at issue, and no point is raised that the counterclaim is admitted, it cannot be taken on appeal.

1 State v. Williams, 77 Mo. 463; Simmons . Carrier, 68 Mo. 421; Woodward v. Sloan, 27 Ohio St. 592; Lovell v. Wentworth, 39 Ohio St. 614; Nooner v. Short, 20 Kan. 624; Bent v. Philbrick, 16 Kan. 190; Hopkins v. Cothran, 17 Kan. 173; Wilson v. Fuller, 9 Kan. 190; Gibbs v. Dickson, 33 Ark. 107.

2 McAlister v. Howell, 42 Ind. 15, 26.

3 Henslee v. Cannefax, 49 Mo. 295; Meader v. Malcolm, 78 Mc. 550. BOONE PLEAD.-16.

4 Woodward v. Sloan, 27 Ohio St. 592. Although a reply where required was not filed, the court should not for that reason set aside a verdict, but should allow a reply to be filed nunc pro tunc to aid the verdict: Foley v. Alkire, 52 Mo. 317.

5 Wilcox v. Majors, 88 Ind. 203; Breidert v. Krueger, 92 Ind. 142. And see Dodds v. Vannoy, 61 Ind. 89; Benoit v. Schneider, 47 Ind. 13. 6 Randolph v. Mayor etc. 53 How. Pr. 68; Clinton v. Eddy, 37 How. Pr. 23; 54 Barb. 54; 1 Lans. 61.

7 Jordon v. Nat. Shoe & Leather Bank, 74 N. Y. 467; 12 Hun, 512.

108. In cases not required.- No reply is required under the procedure of some of the States,' and the statement of any new matter in the answer, in avoidance or constituting a defense or counter-claim, must, on the trial, be deemed controverted by the opposite party. This allows a plaintiff, in reply to such new matter, to introduce on the trial any evidence which countervails or overcomes it, as if it were inserted in a replication, and pleaded with all the precision and fullness which the strictest rules of law ever required.3 And the same rule applies to the answer to a crosscomplaint. So if a reply is not necessary unless the answer sets up a counter-claim, the plaintiff may prove any matter in denial or avoidance of the answer, when it sets up an affirmative defense, which is not a counterclaim. Thus, in New York, when the answer contains only new matter constituting a defense by way of avoidance, a reply put in without the direction of the court is irregular, and should be stricken out; it is only requisite that the complaint state facts sufficient to make out a cause of action, and if the answer sets up facts which, if true, would destroy that cause of action, the plaintiff may meet them by proof in rebuttal or avoidance. And when a reply is not necessary, it cannot be ordered on the plaintiff's application, and the defendant be compelled to receive it. Generally speaking, no reply is necessary where the answer is only a general denial, or where the allegations in the answer raise only the question of the truth of the alle

gations set forth in the complaint or petition.10 And allegations in an answer which are merely conclusions of law need no reply.11 New matter which requires a reply, within the meaning of the statute, is such matter as must be affirmatively pleaded.12 A reply put in without necessity cannot be set aside for want of verification.13 A reply interposed to the original answer is good as a reply to an amended answer, which only adds matter not requiring a reply.11 And a reply to an answer will stand as the reply to the answer to an amended complaint, if so treated by the parties at the trial, without objection.15

3 Curtiss v. Sprague, 49 Cal. 301; Colton Land etc. Co. v. Raynor, 57 Cal. 588.

4 Colton Land etc. Co. v. Raynor, 57 Cal. 588.

5 Metrop. Life Ins. Co. v. Meeker, 85 N. Y. 614; O'Gorman v. Arnoux, 63 How. Pr. 159; Dillon v. Sixth Av. R. R. Co. 14 Jones & S. 21.

6 Dillon v. Sixth Av. R. R. Co. 14 Jones & S. 21.

7 Metrop. Life Ins. Co. v. Meeker, 85 N. Y. 614.

8 McDonald v. Davis, 1 N. Y. Month. Law Bull. 20.

9 Wilson v. Fuller, 9 Kan. 177; Dayton Ins. Co. v. Kelly, 24 Ohio St. 345; Davis v. Dycus, 7 Bush, 4; Uhl v. Harvey, 78 Ind. 26. And see Webb v. Corbin, 78 Ind. 403.

10 Ferguson v. Tutt, 8 Kan. 370; Netcott v. Porter, 19 Kan. 131.

11 Dunning v. Pond, 5 Minn. 302. Compare Evans v. Stone, 80 Ky. 78.

12 Nash v. City of St. Paul, 11 Minn. 174; Evans v. Stone, 80 Ky. 78. 13 Silliman v. Eddy, 8 How. Pr. 122.

14 Leslie v. Leslie, 11 Abb. Pr. N. S. 311.

15 Vaughan v. Howe, 20 Wis. 497.

? 109. Grounds of demurrer to.-The defendant may demur to the reply, or to a separate traverse to or avoidance of a defense or counter-claim contained in the reply, on the ground that it is insufficient in law upon its face.1 And demurrers to the reply are to be governed by the rules prescribed in relation to demurrers to complaints or petitions, when applicable.2

4

At common law, if the replication did not support the declaration, it was bad on general demurrer. So it is held under the Code system of pleading, that if the reply does not support the complaint, by reason of departure, the objection may be taken by demurrer ; * though the contrary has also been held.5 So it was formerly held in New York that a counter-claim, not being a defense, a reply to it could not be demurred to; 6 but the rule is now otherwise under the Code of Civil Procedure. 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 his complaint, and the objection may be taken by demurrer, though the question could also be raised by a motion to strike out.8 A reply containing irrelevant matter was held not to be demurrable for insufficiency, and that such matter could be reached only by motion. In Missouri, in case of a departure, the reply may be stricken out on motion,10

1 See N. Y. Code Civ. Proc. 493; 2 Ohio Rev. Stats. 5067; Wis. Rev. Stats. (1878) 2663; N. C. Code Civ. Proc. 107. The insufficiency which the Code makes a ground of demurrer to a reply is one of substance, not of form: Flanders v. McVickar, 7 Wis. 372. And see Brown v. Tucker, Sup. Ct. Colo. 1 West C. Rep. 489; 7 Colo. 30.

2 See ?? 41, et seq. ante; Wagn. Mo. Stats. p. 1017, 17.

3 Sterns v. Patterson, 14 Johns. 132; Keay v. Goodwin, 16 Mass. 1. 4 McAvoy v. Wright, 25 Ind. 22. And see Wilhite Hamrick, 92 Ind. 594; Haas v. Shaw, 91 Ind. 384; Wells v. Morrison, 91 Ind. 51; Laws v. Carrier, 2 Cin. Rép. 80; 105, ante.

5 White v. Joy, 13 N. Y. 83.

And see Reilly v. Rucker, 16 Ind. 303. 6 Thomas v. Loaners' Bank, 6 Jones & S. 466,

7 2 493.

8 Fallon v. Durant, 3 N. Y. Month. Law Bull. 13; 60 How. Pr. 178. 9 Ludington v. Slauson, 6 Jones & S. 81.

10 Magruder v. Admire, 4 Mo. App. 133; Philibert v. Burch, 4 Mo. App. 470. A special paragraph of reply, under the Code, which does not fully reply to all the material facts stated in the answer to which it is filed, is bad on demurrer for the want of sufficient facts; but the mere omission to notice a preliminary statement in the answer will not vitiate the reply, if it is otherwise a good reply to the merits of the defense stated in such answer: Kinsey v. State, 8 Ind. 351.

CHAPTER VII.

DEMURRER TO ANSWER.

110. When it lies, in general.

111. Form and sufficiency of.

112. Sufficiency of prior pleadings considered on.
113. One good defense.

114. Where counter-claim is interposed.

115. Instances of, sustained.

116. When it will not lie.

117. Effect of.

118. As an admission of facts pleaded.

110. When it lies, in general.-The only defects in pleading which can be reached and obviated by demurrer are those specified in the Code of the particular State, and demurrers interposed for causes or defects not therein enumerated should be overruled. Provisions relating to demurrers to the answer vary to some extent in the Codes of the different States, but generally speaking, where the facts stated in an answer are insufficient in law to constitute a defense, counter-claim, or set-off, the proper mode of raising the question is by demurrer. But the sufficiency of an answer as it respects certainty, precision, definiteness, and consistency of allegation must, in general, be taken advantage of by motion and not by demurrer.3 In New York, an answer which sets up no new matter, but merely denies the allegations of the complaint, is not demurrable, however defective may be the form of the denials. Nor is it a ground of demurrer, that matter constituting a defense is pleaded as a counter-claim. It has, however, been held in Kentucky, that the sufficiency of an answer which is nothing more than a mere denial may be tested upon demurrer." In California, the plaintiff may