and most of the other states, in requiring, if the complaint be verified, a special denial, etc., "or a denial thereof according to his information and belief." The pleader is not permitted to evade the statute; he must deny directly and positively, or must deny in the language of the statute, "according to his information and belief." To say that "he has not sufficient knowledge to form a belief," and therefore, denies, will not do; 18 nor will it be permitted to "deny for want. of information to enable them to admit." 17 The rule is also clearly laid down that one will not be permitted to deny, even in the language of the statute, according to information and belief, when the facts are within his knowledge, or he has the means of information.1

18

16

16 San Francisco Gas Co. v. San Francisco, 9 Cal. 453. 17 Humphrys v. McCall, 9 Cal. 59.

18 Says Field, J., in San Francisco Gas Co. v. San Francisco: "The statute imposes upon the defendant, if a natural person, and if a corporation, upon its officers or agents, the duty of acquiring the requisite knowledge or information to enable them to answer in the proper form.

Any other form of denial in such cases is an evasion of the statute." Burnett, J., in Humphrys v. McCall, says: "Where the alleged fact is, from its nature, presumptively within the personal knowledge of defendant, he cannot be permitted to answer upon information and belief, but must answer in the form positive. And where, from the nature of the fact charged, the knowledge of any of the defendants is presumptively based upon information, he is not bound to deny positively, but only according to his information and belief. * The word 'belief,' as used in the statute, is to be taken in its ordinary sense, and means the actual conclusion of defendant drawn from information. There is a clear distinction between positive knowledge and mere belief, and they cannot both exist together." In Stacy v. Bennett, 59 Wis. 234 [18 N. W. 26], Lyon says: "Except in those special cases in which the defendant is conclusively presumed to have positive knowledge * the defendant may interpose a denial in this form." In Kentucky the original provision in respect to the answer was the same as in New York and elsewhere, but Bullitt's Code, § 95, simply provides for "a traverse." In Colorado the excuse for a direct denial is thus qualified: "In denying any allegation in the complaint not presumptively within the knowledge of the defendant, it shall be sufficient, to put such allegation in issue, for the defendant to state as to any such allegation, he has not, and cannot obtain, sufficient knowledge or information upon which to base a belief." Code Civ. Proc. § 57, last clause.

(471)

§ 327. Facts which may be proved under a Denial—General Rule. 19

The denial may be general or special; the former putting in issue all the plaintiff's material allegations, and the latter the allegation specially denied.20 But neither can do more than put them in issue; hence, under the new procedure, parties never go to trial upon a written affirmation and denial of certain facts, when the real issues involve the existence of other facts of which no intimation is given in the pleadings.

It has been claimed by some that upon a denial only-as, of the making of a contract-evidence may be given of any fact-as, coverture, etc. that would go to its original validity. But the true rule is, as will hereafter be more fully shown,21 that under a denial the defendant should be permitted to show no fact that does not go to disprove the fact denied.22 Evidence of facts which admit the act charged but which avoid its force or effect, or which discharge the obligation, is inadmissible; but, on the other hand, facts may be proved, although apparently new matter, which, instead of confessing or avoiding, tend to disprove those alleged by the plaintiff. Such facts support the denial. The plaintiff's allegations cannot be true because of certain other facts which are inconsistent with them.23

19 [General Rule as to What Evidence may be Introduced under a General Denial under the Code.

[Under a general denial, the defendant may introduce any evidence which goes to controvert, without admitting them, the facts which the plaintiff is bound to establish in order to sustain his action.]

20 In Oregon and in California, when the answer is sworn to, the denial must be special.

21 Post, $329, 352.

22 "No facts can be proved under either a general or special denial except such as show that the plaintiff's statement of facts are untrue." § 6, under Conn. Pr. Act.

Rule 4,

23 The doctrine is stated in SCHAUS v. MANHATTAN GASLIGHT CO., 36 N. Y. Super. Ct. 262, 14 Abb. Pr. (N. S.) 371, as follows: "Although under the requirements of section 149 of the Code, new matter must be pleaded and, consequently, the defenses of the payment, release, accord and satisfaction, of arbitrament, and many other entire and partial defenses, which while they do not deny the cause of action stated in the complaint, yet seek to avoid or

$328. Continued-Illustrations.

In ejectment, as we continue to call the action for the recovery of real property, and in those states where there is no statutory authority to introduce special defenses under a general denial, one may, under such denial, prove an outstanding title or title in himself, for such evidence directly controverts the plaintiff's allegation of title, or right of possession derived from it; 24 or he may show any other fact which destroys the plaintiff's title.25 Upon the same prin

to bar it, and which were formerly available under the general issue, must now be set up in the answer before evidence in support thereof can be received. McKyring v. Bull, 16 N. Y. 297. Yet, under a general or specific denial of any part of the complaint which the plaintiff is required to prove to maintain his action, the defendant, upon principle and authority, is at all times at liberty to prove anything tending to show the plaintiff's allegation is untrue;" citing Wheeler v. Billings, 38 N. Y. 263, and Greenfield v. Massachusetts Mut. Life Ins. Co., 47 N. Y. 430; [Paris v. Strong, 51 Ind. 339; Morgan v. Wattles, 69 Ind. 260; McWilliams v. Bannister, 40 Wis. 489; Scott v. Morse, 54 Iowa, 732, 6 N. W. 68, and 7 N. W. 15; Adams Exp. Co. v. Darnell, 31 Ind. 20.]

24 As, title in himself (Bruck v. Tucker, 42 Cal. 346; Marshall v. Shafter, 32 Cal. 176); although, in those states that do not require the statute of limitations to be specially pleaded, such title be acquired through the statute. Nelson v. Brodback, 44 Mo. 596; Bledsoe v. Simms, 53 Mo. 305; Vose v. Woodford, 29 Ohio St. 245.

25 As where the plaintiff claims, under a tax deed, that the tax had been paid (Lain v. Shepardson, 23 Wis. 224); or that such tax deed had been executed and delivered by collusion and fraud (Mather v. Hutchinson, 25 Wis. 27). But a deed cannot be thus attacked under a denial, unless it is void. Lombard v. Cowham, 34 Wis. 486. The Indiana Code, § 596 (Rev. St. 1881, § 1055), provides that, in actions for the recovery of real property, "the answer of the defendant shall contain a denial of each material statement or allegation in the complaint; under which denial the defendant shall be permitted to give in evidence every defense to the action that he may have, either legal or equitable." Under this statute, the statute of limitations may be given in evidence under a general denial (Vail v. Halton, 14 Ind. 343); or an equitable title acquired by an irregular guardian's sale (Maxwell v. Campbell, 45 Ind. 360). But in an action by a wife against her husband to recover lands belonging, in equity, to her, a creditor of the husband who is allowed to intervene and is made defendant, must in addition to a denial, show his relation to the husband as creditor. Watkins v. Jones, 28

ciple, in actions for the recovery of personal property, a denial puts in issue the plaintiff's ownership; and an averment by the defendant that the property belongs to a third person is "not new matter, within the meaning of the statute; it is but another form of denial of plaintiff's ownership and right of possession set forth in the complaint." 26 One is sued for the consideration of a patentright which had been conveyed to him; held, that under a general denial he may prove that the patent was not the sole consideration,

Ind. 12. And in an action against the city to prevent the improvement of a private alley, a defense that the alley had been dedicated to public use, and thereby become a public highway, is new matter, to be pleaded. City of Evansville v. Evans, 37 Ind. 229. The Ohio statute (Civ. Code, § 559; Rev. St. 1880, § 5782), and that of Kansas (Civ. Code Pr. § 596), and of Nebraska (Code Civ. Proc. § 627), make it sufficient for the defendant to deny generally, in his answer, the title alleged in the petition, or that he withholds possession. He may prove any fact tending to show that the plaintiff has not the title or the right of possession (Wicks v. Smith, 18 Kan. 508); but new matter which admits the plaintiff's title, but which shows that the defendant has a right of possession notwithstanding, or that he has an equitable title should be pleaded (Powers v. Armstrong, 36 Ohio St. 357). As to the manner of pleading the custom, see post, §§ 349-351.

26 Crocker, J., in WOODWORTH v. KNOWLTON, 22 Cal. 164. One who sues for the recovery of personal property "must recover upon the strength and validity of his own title and right to possession of the property; and if the defendant can show the property, and right to possession of the property, to be in himself, or in a third person, he may do so under the general denial, and thus defeat the action." Downey, J., in Kennedy v. Shaw, 38 Ind. 474. He may show title in a stranger although he does not connect himself with it. Griffin v. Long Island R. Co., 101 N. Y. 348 [4 N. E. 740]. An additional special paragraph setting up property in defendant may be stricken out. Sparks v. Heritage, 45 Ind. 66. The new matter is but an argumentative denial. Davis v. Warfield, 38 Ind. 461. It is a good answer, but unnecessary when the general denial is in. Thompson v. Sweetser, 43 Ind. 312. See Pulliam v. Burlingame, 81 Mo. 111; [Siedenbach v. Riley, 111 N. Y. 560, 19 N. E. 275; Lane v. Sparks, 75 Ind. 278; Deford v. Hutchison, 45 Kan. 318, 25 Pac. 641; Staley v. Housel, 35 Neb. 160, 52 N. W. 888, where it was held, in an action of ejectment that under a general denial, the defendant may show that plaintiff's title was procured by fraud and undue means, or any other fact which will defeat the plaintiff's cause of action; Franklin v. Kelley, 2 Neb. 79; Sparrow v. Rhoades, 76 Cal. 208, 18 Pac. 245; Armstrong v. Brownfield, 32 Kan. 116, 4 Pac. 185; Mather v. Hutchinson, 25 Wis. 27.]

but that something else was also to be conveyed." In an action for malicious prosecution, a denial that the proceedings complained of were without cause and malicious, is sufficient; an additional statement showing that there were good and reasonable grounds of action, setting them out in detail, is redundant, and should be stricken out, on motion.28 Evidence showing that the defendant "acted in good faith, under the advice of counsel, after a full and fair statement to his counsel of the facts of the case, is directly re

sponsive to the evidence introduced by the plaintiff to show the want of probable cause, and does not constitute new matter, within the sense of the Code." 29 After having denied the breach of an agent's bond to truly account, etc., the defendant may show settlement with the principal, part payment, and that he gave a note for the balance, as sustaining a denial.30

t

In an action for the price of tobacco, the complaint alleged a sale to defendant, and the answer denied it. After the plaintiff had proved the sale to defendant's agent, it was competent, under the

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

28 Benedict v. Seymour, 6 How. Pr. 298. An early elaborate opinion by Selden, J.

29 Rhode, J., in LEVY v. BRANNAN, 39 Cal. 485. In an action against a grand juror for malicious prosecution, he may avail himself of the protection given him by law, under a general denial. Hunter v. Mathis, 40 Ind. 356. See, also, Trogdan v. Deckard, 45 Ind. 572. Section 66 of the Indiana Code declares that all defenses, except the mere denial of the facts alleged by the plaintiff, shall be pleaded specially, and section 91, that, under a mere denial of any allegation, no evidence shall be introduced which does not tend to negative what the party making the allegation is bound to prove. These sections only set out in terms what is elsewhere inferred from the general provisions in regard to answers. In Scheer v. Keown, 34 Wis. 349, it is held that in an action for malicious arrest and false imprisonment, under a charge of larceny, evidence of the bad character of the plaintiff, as showing probable cause, is inadmissible unless specially pleaded. See, also, Sparling v. Conway, 75 Mo. 510. [Also held, in an action for malicious prosecution, that plaintiff's guilt may be shown under a general denial. Bruley v. Rose, 57 Iowa, 651, 11 N. W. 629. The statute of frauds may be relied upon in some states under general denial. Hook v. Turner, 22 Mo. 333; Springer v. Kleinsorge, 83 Mo. 152; Popp v. Swanke, 68 Wis. 364, 31 N. W. 916. Contra, Livesey v. Livesey, 30 Ind. 398.]

30 Wheeler & W. Manuf'g Co. v. Tinsley, 75 Mo. 458.