New causes of action. A plaintiff can recover only on the causes of action stated in his petition. It is not the province of a reply to introduce new causes of action. This can be done only by amendment of the petition. 1

Facts stated in an answer, which could have been given in evidence under a general denial, do not constitute new matter requiring a reply. 2

A reply which "denies that the cause of action accrued more than six years before the commencement of the suit," will, on demurrer, be held to put in issue the time when the cause of action occurred. 3

Where, under the rules of pleading, a reply is necessary, the failure to file the same will, for the purposes of the trial, be taken as an admission of the truth of the new matter in the answer which should have been replied to, and it will be unnecessary to prove the same. Where, however, the new matter constitutes a mere denial, it is unnecessary to reply thereto. 4

No reply necessary, when. New matter in an answer which does not constitute a defense to the plaintiff's petition does no require a reply. Where a judgment in favor of the defendants on the allegations of the petition would give them all the relief which they would obtain under the averments of the answer, it is unnecessary to file a reply. And where it is alleged in the petition that an assignment of a note and mortgage was without consideration, and for the purpose of collec

After

the trial was treated as if denied.
verdict, also, the court will permit a re-
ply to be filed nunc pro tune, to conform
to any previous arrangement of the par-
ties.
Foley v. Alkire, 52 Mo. 317.
While a court will endeavor to save the
rights of the parties by considering a re-
ply waived by the defendant where the
case is tried upon the theory that the
new matter in the answer is denied, still
the better course is to file a reply before
the trial commences, unless there is a
stipulation in writing, duly signed, waiv-
ing the same, or an agreement to that
effect in open court and entered on the
journal. Payne v. Briggs, 8 Neb. 75.

1 Durbin v. Fisk, 16 O. S. 534; School District v. Caldwell, 16 Neb. 68. 2 Corry v. Campbell, 25 O. S. 134.

3 Whelan v. Kinsley, 26 Id. 131. 4 Hoffman v. Gordon, 15 O. S. 212; State v. Williams, 48 Mo. 210; Denny v. I. & I. C. R. Co., 11 Ind. 292; Cooke v. Williamson, Id. 242; Riddle v. Parke, 12 Id. 89. Where the answer purports to admit certain allegations not contained in the petition no reply thereto is necessary. Hoisington v. Armstrong, 22 Kas. 110.

5 West v. Cameron, 18 Pac. R. 894. 6 Kavalier v. Machula, 77 Iowa, 121.

tion, an answer that the transfer was a sale for a valuable consideration, was held not new matter.1

A departure in pleading is said to take place when the second pleading of a party contains matter not pursuant to the former, and which does not fortify the same; in other words, when his second plea does not contain matter pursuant to the first pleading. The stringent rules of the common law do not prevail under the code, except that the new matter set out in the reply shall not be inconsistent with the petition. It is unnecessary for the plaintiff to restate his cause of action in the reply. All that is necessary for him to do is to deny the facts stated in the answer where such denial is proper, or to state such new matter as will defeat the defendant's claim or defense in whole or in part. Any new matter set forth in the reply will be deemed denied, without further pleading by the

1 Engel v. Bugbee, 40 Minn. 492. It is said: "The complaint alleges that McDermid, plaintiff's intestate, left with defendant Bugbee, who is an attorney at law, a note and mortgage on real estate executed to McDermid by defendants Hasty and Reem, for safe-keeping and collection; that Bugbee represented to him that to enable him (Bugbee) to collect the note and mortgage, it was necessary for him to assign them to him, the said Bugbee, and thereupon, relying on such representations, and without any consideration, and for the purpose of enabling Bugbee to collect the note and mortgage, he assigned them to him, and Bugbee caused the assignment to be recorded; that prior to McDermid's death, in May, 1888, Hasty and Reem paid to Bugbee on the note and mortgage $650; that since said death the latter falsely claims to be the owner of the note and mortgage. The judgment demanded is that Bugbee surrender the note and mortgage to plaintiff, and pay over to him all moneys collected by him thereon, less his fees for collecting; that, pending the action, defendants Hasty and Reem be enjoined from paying to Bugbee any further sums on the note and mortgage.

It needs but this brief statement of the contents of the complaint to show that it states a cause of action. Of course, an attorney whose client leaves with him securities for collection and obtains from the client an assignment of them by representing that it is necessary in order to collect them, cannot, by virtue of the assignment, withhold them from the client. But we think the court below probably decided the motion on the second of the above propositions. The answers, in addition to denials of the allegations in the complaint,allege, in effect, that the assignment by McDermid to Bugbee was upon a sale by the former to the latter for a valuable consideration. As the complaint had alleged that it was for the purpose of collection, and without consideration, the character, circumstances and purpose of the assignment were fully in issue upon the complaint and answers, without any further pleading. No reply was needed. The allegation in the answers, while proper enough, may be termed only an affirmative form of denying the allegation of the complaint.

2 Co. Litt. 304 s.; 2 Saund. 84; Stephen Pl. 410.

defendant, and the plaintiff must prove the same.

The remedy

for a departure probably is by motion, which must be made before the parties go to trial. 1

The pleader will sometimes be in doubt as to whether an answer contains new matter which requires a reply. In such case the better course is to file a reply.

The plaintiff, in reply to the answer of the defendant, denies each and every allegation contained therein.

Title of cause.

SPECIAL Denial.

The plaintiff, in reply to the answer of the defendant, denies [state what allegations are denied, as in an answer].

Title of cause.

NEW MATTER AND DENIAL.

1. The plaintiff, in reply to the answer [or to the first, second, third, etc., count of the answer] of the defendant, alleges [set forth the new matter constituting a defense not inconsistent with the petition].

2. In reply to the [first, second or other count] of the answer, the plaintiff denies each and every allegation therein contained.

Title of cause.

STATUTE OF LIMITATIONS.

The plaintiff, in reply to the counter-claim in the answer of the defendant [or to the first, second, third, etc., count thereof ], says that the cause of action set forth in said first, etc., count of said counter-claim [or answer] did not accrue within [four] years next before the bringing of this action.

The reply should be truthful and consistent with the petition. Thus, suppose an action is brought on the judgment of another state, the defense of which is fraud in obtaining it; to illustrate, the petition or complaint, answer and reply thereto are given as follows:

12

PETITION.

he recovered a judgment

1. The plaintiff alleges that on the 3d day of June, against the defendant duly given by the Superior Court of Cincinnati, Ohio, for the sum of $1,000, and $20 costs of suit, in an action then pending in said court, in favor of the plaintiff, and against the defendant.

2. Said judgment has not been paid, nor any part thereof, and there is due thereon from defendant to the plaintiff the sum of $1,000, with $20 costs and interest from the 3d day of June,

J. The defendant, in answer to the petition of the plaintiff, alleges that the judgment set forth in said petition was obtained by the plaintiff against the defendant by fraud and misrepresentation, in this - that the plaintiff, after the commencement of the action upon which said judgment was obtained, fraudulently represented to the defendant, for the purpose of preventing him from defending said action, that he was about to dismiss said action, and that he would not further prosecute the same, and that the defendant need not employ an attorney nor pay any further attention to it. 2. The defendant, relying upon said representations of the plaintiff, failed to employ an attorney or to appear at the next term of said court to defend said action. 3. The plaintiff frau lulently appeared at the next term of said court, and, without the knowledge of the defendant, prosecuted said action, and obtained said judgment against the defendant by default.

4. The defendant was not indebted to the plaintiff in the sum claimed in said petition, nor in any sum whatever, and has a complete defense to said action, in this— that each and every allegation in the petition on which judgment was recovered is untrue.

Verification.

To which answer replys were filed as follows:

SHAM REPLY.

The plaintiff, in reply to the answer of the defendant, says that he has not sufficient information or knowledge of the matters set forth in said answer to form a belief, and therefore denies the same.

Verification.

PROPER REPLY.

The plaintiff, in reply to the answer of defendant, denies each and every allegation therein contained.

The plaintiff, in reply to the answer of the defendant, alleges that the judgment on which the action is brought was recovered in the Court of Common Pleas of the county of Lucas, Ohio, and not in the Superior Court of Cincinnati, Ohio.

Verification.

CHAPTER XVI.

VERIFICATION OF PLEADINGS OF FACT.

There is no uniform rule in the code states as to the verification of pleadings.

In Indiana, Missouri, etc., no verification is required, while in New York a pleading may or may not be verified, and the same rule prevails in Iowa, and perhaps other states. It is impossible, therefore, to state a rule which will be applicable to all the code states.

In all such states, however, where an oath is required, it may be substantially in one of the forms here given.

FORM OF AFFIDAVIT TO PETITION OR REPLY.

State of
County.

I, A B, plaintiff [or one of the plaintiffs] in the above entitled action, do solemnly swear that I believe the facts stated in the foregoing petition [or reply] to be

true.

Subscribed in my presence, and sworn to before me, this

State of

E F, Clerk of the [District] Court. DEFENDANT SUED BY FICTITIOUS NAME. 2

County.'

I, A. B, plaintiff in the above entitled action, do solemnly swear that I believe the facts stated in the foregoing petition to be true; that I could not discover, and am ignorant of, the true name of the defendant.

Subscribed, etc.

1 The code does not require the plaintiff to swear that he is the plaintiff, and a statement of that fact in the affidavit is sufficient. No doubt the relation he bears to the case may be proved as an independent fact.

? Ignorance of the true name must be real, not willful, nor where the plaintiff,

A B.

by proper inquiry, could ascertain the defendant's name. Gardner v. Kraft, 52 How. Pr. 499; Rosencrantz v. Rogers, 40 Cal. 489. The summons must be served on the defendant, and when the true name is disclosed it may be inserted by leave of court.