where issue seems to be taken by the express terms of the plea with the entire cause of action, the denial was not directed to the facts, but rather to the legal conclusion which arises from these facts. In the third place, this answer, in its practical operation, was miscalled the "general issue;" for it ranged through almost every possible degree of efficacy. In some instances, it did not put in issue all the allegations of the declaration, and was therefore far less than a general denial; in other instances, it not only put in issue all the allegations of the declaration, but also admitted proof of nearly all the defences which the defendant could rely upon, and thus united in itself all the possible denials, and almost all the matters of affirmative defence, which could be used to defeat the plaintiff's recovery. In no single instance did it perform the exact functions of the general denial; that is, in no case did it barely put in issue all the averments of the declaration, compelling the plaintiff to prove them, and permitting the defendant to disprove them. It either fell short of, or went far beyond, this natural, and, as it seems to me, strictly logical, office and function. In this respect, the theory of pleading embodied in the codes is more severely scientific as well as more simple and practical than that which lay at the basis of the common-law system. The general issue of non-assumpsit in assumpsit, of nil debet in debt on simple contract, and of not guilty in case and trover, in one important feature, resembled the modern "general denial," since they did put in issue the entire declaration, and acted as a traverse of all its averments, and, as a consequence, admitted any evidence which tended to contradict those averments. But they all went far beyond this limit, and allowed the introduction of matters which were in no sense denials or contradictions. This peculiar characteristic of these forms of the general issue makes it impossible to draw analogies from them to aid in determining the true office of the general denial. It is only by contrast that any assistance can be obtained from the ancient rules and doctrines. § 657. I pass from the foregoing prefatory matter to examine the nature and office of the general denial, and the issues raised by it. In pursuing this inquiry, I shall rely upon the judicial opinions found in decisions which are universally regarded as authoritative, even using their language instead of my own wher ever practicable. The case of McKyring v. Bull1 is conceded to be the leading one. The opinion of Mr. Justice S. L. Selden is so full, accurate, and able an exposition of the subject, that other judges have done little more than repeat his conclusions. The action was brought to recover compensation for work and labor. The complaint alleged that the plaintiff entered into the employment of the defendant at a certain date, and continued in such employment at defendant's request, doing work and labor until another specified date, and that the services so rendered were worth the sum of $650; and concluded as follows: "That there is now due to this plaintiff, over and above all payments and offsets on account of said work, the sum of $134; which said sum defendant refuses to pay: wherefore the plaintiff demands judgment for the last-mentioned sum, and interest from the 4th day of May, 1854." The answer was only a general denial. On the trial, the defendant offered to prove payment as a defence to the action; but the evidence was excluded, on the ground that the defence should have been pleaded. He then offered to prove part payment in mitigation of damages; but this was also rejected for the same reason. The case thus presented two questions to the Appellate Court for decision: (1) Whether payment could have been proved as a defence under the general denial; (2) whether it could have been proved in mitigation of damages. If the action had been assumpsit or debt, the evidence would have been admissible in either aspect. The opinion of Mr. Justice Selden will be found in the foot-note.2 1 McKyring v. Bull, 16 N. Y. 297, de- erse in the plea were in the past instead cided in 1857. 2 McKyring v. Bull, 16 N. Y. 297, 299. "While the general issue both in assumpsit and debt was in theory what the general denial allowed by the code is in fact, -namely, a simple traverse of the material allegations of the declaration or complaint, yet from the different phraseology adopted in the two forms of action, a very different result was produced. The declaration in debt averred an existing indebtedness; and this amount was traversed by the plea of nil debet in the present tense: hence nothing could be excluded which tended to prove that there was no subsisting debt when the suit was commenced. In assumpsit, on the contrary, both the averment in the declaration and the trav of the present tense, and related to a time anterior to the commencement of the action. Under non-assumpsit, therefore, so long as the rule of pleading which excludes all proof not strictly within the issue was adhered to, no evidence could be received except such as would tend to show that the defendant never made the promise. That this was the view taken of these pleas in the earlier cases is clear. . . . We find, however, that a practice afterwards grew up, and came at last to be firmly established, of allowing, under the plea of non-assumpsit, evidence of various defences which admitted all the essential facts stated in the declaration, but avoided their effect by matter subsequent, such as payment, accord, and satis § 658. The discussion of the second question presented in this case is so complete and instructive, that I adopt it as a portion of faction, arbitrament, release, &c. The history and progress of this anomaly is easily traced." Mr. Justice Selden goes on to cite a series of cases showing this course of change by which non-assumpsit came at last to be the comprehensive plea which I have before described, and to state the theories by which judges and text-writers have attempted to reconcile this new doctrine and rule with the grammatical form of the plea. He then proceeds (pp. 301, 302): "These errors proved in their consequences subversive of some of the main objects of pleading. They led to surprises upon the trial, or to an unnecessary extent of preparation. The courts, however, found it impossible to retrace their steps, or to remedy this and other defects in the system of pleading without authority from Parliament. This authority was at length conferred by the act of the 3d and 4th William IV., ch. 42, § 1; and the judges in Hilary Term thereafter adopted a series of rules, one object of which was to correct the errors which have been adverted to. The first rule adopted under the head of assumpsit provided in substance that the plea of nonassumpsit should operate when the promise was express as a denial of the promise; and when it was implied, of the matters of fact upon which the promise was founded. The object of this rule was to restore pleading in assumpsit to its original logical simplicity. It was obviously intended as a mere correction of previous judicial errors. It interprets the plea of non-assumpsit strictly according to its terms, and thus plainly indicates that the courts had erred in departing from those terms. That this was the view of the judges is shown by the different course taken in regard to the plea of nil debet. As this plea, construed according to its terms, included every possible defence within the issue which is formed, the judges did not attempt to change the import of those terms; but abrogated the plea. Rule two, under the head of Covenant and Debt, provides that the plea of nil debet shall not be allowed in any action; and rule three substitutes the plea of nunquam indebitatus in its place. Thus the whole practice, which had continued for centuries, of receiving evidence of payment and other special defences under the plea of nil debet or non-assumpsit, was swept away." Applying this historical analysis, he continues (pp. 302, 303): "There are several inferences to be drawn from this brief review which have a direct bearing upon our new and unformed system of pleading. The first is, that no argument in favor of allowing payment or any other matter in confession and avoidance to be given in evidence under a general denial can be deduced from the former practice in that respect, as this practice has been abandoned in England, not only as productive of serious inconvenience, but as a violation of all sound rules of interpretation. A second inference is, that, in regard to pleading, it is indispensable to adhere to strict logi. cal precision in the interpretation of language. The anomaly which has been referred to was wholly produced by the slight deviation from such precision in the action of indebitatus assumpsit which has been pointed out. But the most important inference to be deduced from the historical sketch just given consists in an admonition to adhere rigidly to that rule of pleading which permits a traverse of facts only, and not of legal conclusions; and this brings us to the pivot upon which the point under consideration must necessarily turn. The counsel for the defendant insists, that, as the answer controverts every allegation of the complaint, it puts in issue the allegation with which it concludes; viz., that there was due to the plaintiff at the commencement of the suit, over and above all payments and offsets, the sum of $134. But this allegation is a mere legal conclusion from the facts previously stated. Its nature is not changed by the addition of the words 'over and above all payments.' No new fact is thereby alleged. The plaintiff voluntarily limits his demand to a sum less than that to which, under the facts averred, he would he entitled. Were courts to allow allegations of this sort to the text. "The next question is, whether evidence of payment, either in whole or in part, is admissible in mitigation of damages. As the code contains no express rule on the subject of mitigation, except in regard to a single class of actions, this question cannot be properly determined without a recurrence to the principles of the common law. By these principles, defendants in actions sounding in damages were permitted to give in evidence, in mitigation, not only matters having a tendency to reduce the amount of the plaintiff's claim, but, in many cases, facts showing that the plaintiff had in truth no claim whatever. It was not necessarily an objection to matter offered in mitigation, that, if properly pleaded, it would have constituted a complete defence. Thus, in Smithers v. Harrison, the truth of the charge was received in mitigation in an action of slander, although not pleaded. Again: in the case of Abbot v. Chapman, which was an action of assumpsit, the defendant having given in evidence a release, Lord Holt said that he should have pleaded exoneravit, but that the evidence was admissible in mitigation of damages.' So too, in the modern case of Nicholl v. Williams, which was assumpsit for use and occupation, the defendant, having pleaded payment to a part of the demand, and non-assumpsit to the residue, was permitted, upon the trial, to prove payment in full; but it was held that the evidence could only go in mitigation, and that the plain be traversed, they would fall into the same difficulty which existed in regard to the plea of nil debet, and which led the judges of England to abolish that plea. It would be impossible under such a rule, in a great variety of cases, to exclude any defence whatsoever, if offered under an answer containing a general denial. In England, as we have seen, after centuries of experience, it has been found most conducive to justice to require the parties virtually to apprise each other of the precise grounds upon which they intend to rely; and the system of pleading prescribed by the code appears to have been conceived in the same spirit. It was evidently designed to require of parties in all cases a plain and distinct statement of the facts which they intend to prove; and any rule which would enable the defendants, in a large class of cases, to evade this requirement, would be inconsistent with this design. The case of Van Gieson v. Van Gieson, 12 Barb. 520, 10 N. Y. 316, contains nothing in opposition to the doctrine here advanced. That case simply decided, that, where the complaint contained an averment of non-payment, a plea of payment formed a complete issue; that, payment having been denied in the complaint, it was unnecessary to repeat that denial in a reply. My conclusion, therefore, is, that neither payment nor any other defence which confesses and avoids the cause of action can in any case be given in evidence as a defence under an answer containing simply a general denial of the allegations of the complaint." 727. 1 Smithies v. Harrison, 1 Lord Raym. 2 Abbot v. Chapman, 2 Lev. 81. tiff was entitled to judgment for nominal damages. It is obvious that this practice was open to serious objections. It enabled defendants to avail themselves of their defences for all substantial purposes without giving any notice to the plaintiff.... But in regard to payment, release, &c., so long as they were received in evidence under the general issue in bar, no objection could be made to allowing them in mitigation. As soon, however, as this practice was abrogated by the rules of Hilary Term, 4th William IV., the question as to the admissibility of payment in mitigation at once arose." The learned judge here traces the course of English decisions upon this question, citing and reviewing a number of cases, and referring to certain additional legislation;1 and concludes this discussion as follows: "The matter is now placed, therefore, in the English courts, upon a footing of perfect justice. If the demand for which an action is brought has once existed, and the defendant relies upon its having been reduced by payment, he must appear and plead. § 659. "It is to be determined in this case whether we have kept up with these courts in our measures of reform. The rules of Hilary Term (4 William IV.) and the system of pleading prescribed by the code have, in one respect, a common object; viz., to prevent parties from surprising each other by proof of what their pleadings give no notice. These rules, according to the construction put upon them by the courts, were found inadequate, so far as proving payment in mitigation is concerned, to accomplish the end in view; and it became necessary to adopt the rule of Trinity Term (1st Vict.) to remedy the defect. If the provisions of the code are to receive in this respect a construction similar to that given to the rules of Hilary Term, then an additional provision will be required to place our practice upon the same basis of justice and convenience with that in England. But is such a construction necessary? Section 149 of the code provides that the answer of the defendant must contain, 1. A general or specific denial of the material allegations of the complaint; and, 2. A statement of any new matter constituting a defence or counterclaim. The language here used is imperative, must contain.' It is not left optional with the defendant whether he will plead 1 Lediard v. Boucher, 7 C. & P. 1, per Lord Denman; Shirley v. Jacobs, 7 C. & P. 3, per Tindal C. J.; Henry v. Earl, 8 M. & W. 228; Rule of Trinity Term, 1st |