necessary; in short, to unite in one answer or division thereof a mass of special admissions, denials, explanations, and affirmative statements, and to conclude the whole with a sweeping clause somewhat in this form: "As to each and every other allegation in said complaint not herein expressly admitted or denied or mentioned, the defendant hereby denies the same;" or, "And the defendant denies each and every other allegation in said complaint not herein before expressly admitted or denied or mentioned." Although a somewhat similar mode of putting in issue the averments of a bill in equity was occasionally resorted to by chancery pleaders under the former system, the codes give no countenance to, nor authority for, such a mongrel form of answer. The true spirit and intent of the theory introduced by the reformed procedure plainly demand certainty, precision, and definiteness in the allegations of both parties, and especially in the denials by which the defendant places on the record the exact issues intended to be tried. In this respect the new method was to be a complete departure from the vagueness and uncertainty resulting from the broad effect given to the general issues in "assumpsit," "debt," and "trover" by the common-law courts, and also from the loose and incomplete manner of presenting the issues which necessarily characterized the answer in chancery. This design of the codes would, however, be utterly defeated if the vicious style of defence thus described should become common; and the courts, it is submitted, ought to have pronounced most emphatically against it when it first made its appearance.

§ 634. The codes require either a general denial, or specific denials, or defences in confession and avoidance; and also that each defence must be separately stated, so that the issue raised by it may be perceived at once. The "general denial" is evidently intended to be an answer to the entire complaint or petition, -to negative all its averments. The design of the legislature and the understanding of the bar upon this point were shown by the immediate adoption of the form in use throughout all the States. The code of Iowa, revised in 1873, expressly enacts that the general denial is interposed to the whole petition; and this provision is plainly a statutory construction of the universally prevailing doctrine: a specific denial, on the other hand, must be addressed to some single, particular allegation, and must distinctly indicate the portion intended to be controverted by it. I am of

opinion that each specific denial ought to be a single and separate defence by itself, so that, if the issue upon it should be decided in favor of the defendant, the cause of action would be defeated. In this respect, I think, the specific denials of the codes were intended to be analogous to the special traverses provided for by the English judges in their new rules of pleading adopted in 1834. Certain it is that the codes do not, by any stretch of their language, contemplate an answer consisting of a general denial directed to a part only of the complaint or petition, and connected with other admissions, partial denials, and explanations.

§ 635. Again: this form of answer makes it extremely difficult, and often impossible, to determine what allegations are denied, and what are passed by in silence, and therefore admitted. If the complaint or petition contains numerous averments, and the answer is such a mass of express admissions, partial explanations, and statements of matter which is merely evidentiary, and concludes with the formula above quoted, we have all the evils which can result from the most vicious system or no-system that can possibly be conceived. The object of pleading is to ascertain and present the issues of fact between the litigants, so that they can be readily perceived and decided by the court and jury. The special boast of the common-law methods was, that they brought out these issues singly and clearly. I am confident that the theory of the reformed procedure, when lived up to and accurately followed, will give much better practical results than were ever obtained as a whole from the former system. The kind of answer which I have described violates every principle of this theory, and is a contrivance of ignorance or indolence.

§ 636. Notwithstanding the foregoing considerations, which appear to be such plain and necessary inferences from the language as well as the intent of the codes, the courts of New York and of some other States have given a seeming approval to this most slovenly manner of stating the defence of denial. So far as their decisions have passed upon the subject, they seem either to approve such answers, or at most to hold, that, if improper, the only mode of correction is by a motion to make them more definite and certain; in other words, they are sufficient to raise the intended issues. It cannot be said, however, that the question has been settled by authority, or that this species of denial

has become an established method of pleading wherever the reformed procedure prevails. The few cases which touch upon the matter will now be cited. In an action upon a policy of life insurance, the answer was of the kind mentioned, and concluded as follows: that "the defendant denied each and every allegation of the complaint not therein expressly admitted. or denied." The Court of Appeals said of this answer: "It is clear both upon principle and authority, that, under a general or specific denial of any fact which the plaintiff is required to prove to maintain the action, the defendant may give evidence to disprove it. If an answer containing denials of the allegations of the complaint, except as thereinafter stated, is rendered indefinite, uncertain, or complicated, the remedy is by motion to make the answer more definite, and not by exclusion of evidence on the trial." 2 A similar answer, ending with a denial of “each and every allegation of the complaint except as herein admitted or stated," was held by the same court to be good and to raise an issue.3

VII. Allegations of Issuable Facts, and not Conclusions of Law, should be denied.

§ 637. The complaint or petition, in addition to the facts from which the right of action arises, sometimes contains the conclusions of law which result from those facts, such as the indebtedness of the defendant, his liability in damages, and the like. It is a fundamental principle of the pleading authorized by the codes, that these averments of fact must be denied, and not merely the legal conclusion therefrom; a traverse of the latter without one of the former is a nullity, and creates no issue. When the issuable facts are denied, a denial of the conclusions of law is unnecessary, but would certainly be harmless. In this respect, the reformed procedure has introduced a new feature into the science of pleading. It is often said, I am aware, by writers of authority even, that, under the common-law methods, the

1 Wheeler v. Billings, 38 N. Y. 263.

2 Greenfield v. Mass. Mut. Life Ins. Co., 47 N. Y. 430, 437, per Grover J. An expression in this quotation indicates a certain misconception on the part of the learned judge. A general denial of a fact is something unknown in the system of pleading established by the codes. See

also Leyde v. Martin, 16 Minn. 38; Becker v. Sweetzer, 15 Minn. 427, 434; Kingsley v. Gilman, 12 Minn. 515, 517, 518, which show that this form of denial is fully approved by the Minnesota court.

3 Youngs v. Kent, 46 N. Y. 672; and see Allis v. Leonard, 46 N. Y. 688.

facts were always, and the legal conclusions were never, to be traversed. But this statement is clearly inaccurate. In some of the most common forms of declaration in constant use, the leading averment was that "the defendant is indebted," a mere inference of law; and the general issue might be, "he is not indebted," or "he was never indebted," which was certainly nothing but the denial of a legal conclusion. All this has been swept away by the codes, and every trace of it left in the modern practice is in direct opposition both to the spirit and to the letter of the statute. A denial of indebtedness or of liability, without denying the allegations of fact from which the indebtedness or liability is claimed to have arisen, is a nullity; it raises no issue, and will be held bad on demurrer, as is shown by the subjoined cases: In an action upon a promissory note, the answer admitted the execution of the note, and denied that the defendant owed the debt to the plaintiff. A demurrer to this answer was sustained, the court saying: "This answer under the former mode of pleading would have amounted to a plea of nil debet, and would not have been good, as the suit was brought upon a note in writing having the dignity of a specialty; and we are of opinion that the answer was not sufficient under the present practice. It was not sufficient to state that defendant did not owe the debt."1 All the cases, with hardly an exception, are to the same effect: as in an action on a note, an answer saying that "the defendants do not owe and ought not to pay the note, for they do not admit the regular protest thereof and notice," raised no issue ; 2 also where, in an action for goods sold and delivered, the answer "denies that the defendant is indebted to the plaintiff as stated in the petition; "3 and where, in an action on a note, the answer simply denied indebtedness to the plaintiff as claimed in the petition, or in any other sum or amount whatever.4

§ 638. The same is true of any other denials of mere inferences or conclusions of law. Thus, in a suit upon a note given to the plaintiff, a married woman, and made expressly payable to

1 Haggard v. Hay's Administrator, 13 Curtis v. Richards, 9 Cal. 33; Wells r. B. Mon. 175. McPike, 21 Cal. 215; Higgins v. Germain,

2 Clark v. Finnell, 16 B. Mon. 329, 1 Mont. 230; Skinner v. Clute, 9 Nev. 335. 342.

3 Francis v. Francis, 18 B. Mon. 57; and see Nelson v. Murray, 23 Cal. 338;

4 Morton v. Coffin, 29 Iowa, 235, 238.

her on its face, a defence that the "note is not her separate property," and a denial that she is the legal owner and holder thereof, were both held nullities, and struck out on motion.1 The defence, in an action to foreclose a mortgage, "that D. [the mortgagor] was regularly and duly discharged from all his debts, including that to the plaintiff, under proceedings in insolvency," was held not to be new matter requiring a reply, "but only a conclusion of law and not of fact," and not to create an issue.2 In an action to recover for injuries caused by the negligence of the defendant, the complaint, after stating the necessary facts showing the negligent omissions, and the consequent destruction of the plaintiff's property, concluded, "to his great damage, to wit, in the sum of $800." The answer simply denied "that the plaintiff had suffered damage in the sum of $800." This denial raised no issue.3

§ 639. The converse of the rule illustrated by the foregoing cases is also true. If the answer denies the material facts averred by the plaintiff, or alleges material facts constituting a defence of new matter, it need not deny the plaintiff's conclusions of law, or state any conclusions of law as the inference from the facts which it has pleaded. Thus, in an action upon a contract, the answer alleged all the facts necessary to show that the agreement was illegal as being in restraint of trade; but the illegality was not expressly averred, nor relied upon as a defence by means of any clause drawing such a conclusion from the facts which were stated. The defence, however, was held to be sufficient both in form and substance: the facts constituting it were all pleaded; and that was enough, without adding the legal inferences from them.4

VIII. Denials of Knowledge or Information.

§ 640. All the denials, either general or specific, to which the rules stated in the foregoing subdivisions apply, may be either positive, or denials of knowledge or information in respect to the

1 Frost v. Harford, 40 Cal. 165, 166; without controverting any of the facts alFelch v. Beaudry, 40 Cal. 439.

2 Christy v. Dana, 42 Cal. 174, 178. 3 Huston v. Twin and City, &c. Turnp. Co., 45 Cal. 550; Higgins v. Wortel, 18 Cal. 330. In an action to enforce a lien upon defendant's land, an answer which,

leged, simply denied that the plaintiff had any lien, was held to raise no issue. Bradbury v. Cronise, 46 Cal. 287. See, however, Simmons v. Sisson, 26 N. Y. 264, 270, 273.

4 Prost v. More, 40 Cal. 347.