those in other pleadings to which the liberal mode of construction had been applied by the same court. The pleader did allege something more than the broad conclusion that the note was usurious, and the criticism of the court in this respect was without foundation in fact: he detailed the issuable facts with such minuteness and certainty, that no one could be misled as to the exact nature of the defence. The narrative was undoubtedly incomplete, and it should have been perfected upon the plaintiff's motion; but this is all that can be objected to it. The court may have been unconsciously influenced in their decision by a feeling of distaste for the defence of usury, and thus led to apply a stricter rule of construction than they would have enforced in respect to other defences.

§ 605. The case of Lefler v. Field is in yet stronger contrast with the general course of authorities, and with the express requirement of the codes that the pleadings must be construed liberally with a view to substantial justice between the parties, and not adversely to the pleader. The action was for the price of barley bargained and sold. The answer set up that the barley was contracted for by an agent of the defendants, who agreed to buy it if it was good and merchantable; that the plaintiff represented said barley to be a good, first quality, merchantable article; that the agent relied on such representations; that the barley was not merchantable, which fact was known to the plaintiff, and therefore the defendants refused to accept the same. No demurrer was interposed, nor motion made; and the parties went to trial on the pleadings as they stood. The Court of Appeals held that no evidence was admissible to establish the defence; that the answer did not allege a defence of fraud, since it omitted to state two necessary elements thereof; (1) that the plaintiff made the representation with the intent to deceive, and (2) that the defendants or their agent were in fact deceived.

§ 606. When two or more defendants are sued and unite in one responsive pleading, it must be good as to each and all of these parties, or it will be wholly bad. This is the rule which prevails almost universally. Thus, if the defendants join in an answer which on demurrer proves to be insufficient as to one, it will be adjudged bad as to all; but the result will, of course,

1 Lefler v. Field, 52 N. Y. 621. Compare Hutchings v. Castle, 48 Cal. 152.

be otherwise if they plead the same answer separately. On the same principle, if two or more defendants unite in a demurrer to the complaint or petition, and a good cause of action is stated against one or some of them, the demurrer will be wholly overruled. The rule is extended by analogy to pleadings containing two or more separate defences or causes of action. If a demurrer is interposed to an entire answer containing two or more separate defences, or to an entire complaint containing two or more causes of action, it will be overruled if there is one good defence or one good cause of action. In an action for a joint and several tort against several defendants, where the answer of one is a complete justification of the alleged wrong as to all, and the others either suffer a default or plead different defences, if the issues raised by this answer are found against the plaintiff, the verdict will operate for the benefit of all the defendants, and he cannot recover a judgment against those even who made default.*

§ 607. It was an inflexible rule under the common-law system that every plea in bar must go to the whole cause of action, and must be an entire answer thereto on the record: with pleas in abatement the rule was different, for they did not purport to answer the cause of action. The spreading of a partial defence upon the record was unknown. Whenever such defences were to be relied upon, as, for example, mitigating circumstances,— they were either proved under the general issue, or under a special plea setting up a complete defence which the pleader knew did not exist. The code has certainly abolished this doctrine and the practice based upon it. Several features of the new procedure are utterly inconsistent with it. In the first place, the general or special denials of the code are not so broad as the general issues of the common law most in use had become;

1 Morton v. Morton, 10 Iowa, 58. 2 McGonigal v. Colter, 32 Wisc. 614; Webster v. Tibbits, 19 Wisc. 438.

3 Jeffersonville, &c. R. R. v. Vancant, 40 Ind. 233; McPhail v. Hyatt, 29 Iowa, 137; Modlin v. North West. T. Co., 48 Ind. 492; Excelsior Draining Co. v. Brown, 47 Ind. 19; Towell v. Pence, 47 Ind. 304; Davidson v. King, 47 Ind. 372; Washington Town'p. v. Bonney, 45 Ind. 77; Silvers v. Junction R. R., 43 Ind. 435, 442-445.

4 Williams v. McGrade, 13 Minn. 46.

The action was for taking and converting chattels. All the defendants except two united in a general denial. One, McG., set up another action pending. The defendant C. alone justified as sheriff under an execution against one H. D. W., alleging that the goods were the property of said H. D. W. On the trial, this justification was proved, and it was held to enure for the benefit of all the defendants. See also, to the same effect, Devyr v. Schaefer, 55 N. Y. 446.

and, as will be particularly shown in the following section, they admit of no evidence not in direct answer to the plaintiff's allegations. In the second place, the verification of pleadings introduced by the codes cuts off all averment of fictitious defences. In the third place, the statute expressly authorizes the defendant to set forth as many defences as he may have ;" and this has been very properly construed as a direct permission, and even requirement, to plead partial as well as complete defences. Notwithstanding this express statutory provision, there has been some conflict of opinion among the courts in respect to the pleading of mitigating facts and circumstances. Certain judges have found it impossible to forget the technical methods of the old procedure, and have seemed determined to treat them as still existing in full force and effect; while others have readily adopted the spirit as well as the letter of the reformed system. I shall, therefore, postpone the discussion of this particular subject the pleading of mitigating circumstances until the sections are reached which treat of the "general denial" and of "new matter."

§ 608. While partial defences are to be pleaded, it is well settled that they must be pleaded as such. If a defence is set up as an answer to the whole cause of action, while it is in fact only a partial one, and even though it would be admissible as such if properly stated on the record, it will be bad on demurrer: the facts alleged will not constitute a "defence;" which word, when thus used alone, imports a complete defence. The practical result of this doctrine is, simply, that the pleader must be careful to designate the defence as partial; he must not content himself with simply averring the facts as in an ordinary case, as if they constituted a full answer to the cause of action, but he must expressly state that the defence is partial. In the absence of such statement, it will be assumed that he intended the defence to be complete.1

1 Fitzsimmons v. City Fire Ins. Co., 18 Wisc. 234; Traster v. Snelson's Administrator, 29 Ind. 96; Sayres v. Linkhart, 25 Ind. 145; Conger v. Parker, 29 Ind. 380; Stone v. Lewman, 28 Ind. 97; Sanders v. Sanders, 39 Ind. 207; Yancy v. Teter, 39 Ind. 305; Bouslog v. Garrett, 39 Ind. 338; Summers v. Vaughan, 35 Ind. 323, and cases cited. In Fitzsim

mons v. City Fire Ins. Co., supra, it was said by Cole J., at p. 240 : “The appellant contends that, if this answer is not good as a total defence, it is good as a partial defence to the action. The difficulty with this position is that this answer professes and assumes to answer the entire cause of action. It is not relied on as a partial but as a complete defence, and we have

§ 609. This rule seems to be well established, but it is certainly one which may often work injustice. It is a remnant of the old system, and does not harmonize with the central design of the new, which is to elicit the truth and to decide controversies upon all the actual facts. When the defendant has set up a defence as if to the entire cause of action, which is, however, only par\tial, and when, if described as partial, it would have been perfectly regular, the plaintiff could not be prejudiced by allowing it to stand for what it is worth as a partial defence. He knows that it is, in fact, partial, for the very objection assumes that knowledge. If accurately named, he would be obliged to meet and answer it on the trial; and he would only be compelled to make the same preparation if it were suffered to remain on the record, and to fulfil its intended purpose. In short, the plaintiff could not be misled by such a proceeding; and to strike out the pleading altogether would, if its allegations were true, be depriving the defendant of certain relief to which he was in justice entitled. I repeat, the rule is nothing but a remnant of the ancient technicality, the old devotion to external forms of logical precision which marked the common-law procedure, and which made it any thing but a practical means of eliciting and applying the truth in judicial controversies.

SECTION THIRD.

THE DEFENCE OF DENIAL.

§ 610. The various species of denial provided for in the codes are "general" or "specific," and positive or denial of "knowledge or information of the matter sufficient to form a belief." In most of the codes, it is expressly permitted that the denials

seen that for this purpose it is insufficient. Now, under the old system, when a plea professed in its commencement to answer the whole cause of action, and afterwards answered only a part, the whole plea was bad. This rule was elementary; and, upon general principles, we do not see why it is not applicable to pleadings under the code. If a party has a partial defence to an action, he should set it up, and rely on it as such, and not as a complete and entire defence." See also, to the same

effect, Adkins v. Adkins, 48 Ind. 12, 17; Allen v. Randolph, 48 Ind. 496; Alvord v. Essner, 45 Ind. 156; Curran v. Curran, 40 Ind. 478; Jackson v. Fosbender, 45 Ind. 305; Beeson v. Howard, 44 Ind. 413, 416; Gulick v. Connely, 42 Ind. 134, 136. But this rule does not extend to an answer simply pleading a set-off less than the plaintiff's demand, since a set-off is not strictly a defence; Mullendore v. Scott, 45 Ind. 113; Dodge v. Dunham, 41 Ind. 186.

may be either "general" or "specific." In a few, no provision is in terms made for the general denial, and only those that are "specific" or "special" are mentioned. In one or two, the language simply speaks of "a denial."1 According to a large majority of the codes, the denial, whether general or specific, may be either positive, or a denial of "knowledge or information thereof sufficient to form a belief; " but in a very few of them the latter form is omitted. The defendant is universally allowed to deny only such allegations of the complaint or petition as he controverts, and this permission is usually given whether he employs the "general" or the "specific" form of denial; but in the latest revision of the Iowa Code (1873), it is said with more accuracy that the general denial must be "of each allegation of the petition," while the specific denial is to be "of each allegation of the petition controverted by him."

§ 611. In actual practice, the "general denial," wherever permitted, is only employed when the defendant desires to put the whole complaint or petition in issue, and "specific specific" denials when he wishes to take issue merely with certain allegations thereof. It is very plain, that in the former case the "general denial," in its brief and comprehensive form, is as efficacious as a particular traverse of each averment separately. Nothing is gained by filling the record with specific denials, when one sweeping denial of the entire pleading will answer the same purpose and admit the same proofs. I shall distribute the subjectmatter of this section under the following heads, assuming in the first instance, for convenience of the discussion, that the denial is "positive:" I. The form of the "general denial," and of the "specific denials;" II. The nature of "specific denials," and

1 In Minnesota, although the code is silent respecting the general denial, and speaks only of a denial of each allegation," it is settled by repeated decisions that the ordinary form of the general denial is a compliance with the statute, and is entirely proper: hence the general denial is in constant use in that State; and such, I believe, is the practice in most of the States. Leyde v. Martin, 16 Minn. 38; Becker v. Sweetzer, '15 Minn. 427, 434; Kingsley v. Gilman, 12 Minn. 515, 517; Bond v. Corbet, 2 Minn. 248; Caldwell v. Bruggerman, 4 Minn. 270; Starbuck v. Dunklee, 10 Minn. 173; Montour

v. Purdy, 11 Minn. 401. On the other hand, in North Carolina, notwithstanding the language of the code, which is exactly the same as that in New York, expressly authorizes the general denial, the general denial in the ordinary form, as used in other States, is held to be a nullity, and an answer containing it will be struck out as sham: an altogether different construction is placed upon the language of the statute from that given in any other State. Schehan v. Malone, 71 N. C. 440, 443; Flack v. Dawson, 69 N. C. 42; Woody v. Jordan, 69 N. C. 189, 195.