§ 331. The Denial should be specific-General Form of Denial.52

Whether the denial be general or special-that is, whether the defendant deny all the plaintiff's material allegations, or a part only-it must unequivocally appear what he intends to deny. For a defendant to say that he denies each and every material allegation, is no such denial, for it is uncertain what he considers material.53 He should admit, or what is the same in effect, say nothing about, the facts he does not controvert and should expressly deny what he would put in issue. To admit some and deny all others without specifying them, has been supposed to raise a doubt as to what he intends to deny. Thus a denial of each and every allegation not therein expressly admitted or denied has been disapproved in New York, and it is held that, though the defect be not such as to exclude evidence supporting the denial, the defendant will be required to make the answer more definite." The Court

52 [Form of General Denial.

[Title of case (same as petition).

54

[The defendant, in answer to the petition (complaint) of the plaintiff, denies each and every allegation thereof.

[MATTISON v. SMITH, 19 Abb. Pr. 288; KELLOGG v. CHURCH, 4 How. Pr. 339; Gassett v. Crocker, 9 Abb. Pr. 39.]

53 Edmonson v. Phillips, 73 Mo. 57; Pry v. Hannibal & St. J. R. Co., Id. 123. But the objection must be raised before trial. Such a denial seems to be sustained in Iowa; stricken out. Ingle v. Jones, 43 Iowa, 280. will be made more certain on motion. Lewis v. Coulter, 10 Ohio St. 451.

Collins v. Trotter, 81 Mo. 275. at least, the pleading will not be Good on demurrer in Ohio, but

54 Greenfield v. Massachusetts Mut. Life Ins. Co., 47 N. Y. 430; Burley v. German-American Bank, 111 U. S. 216 [4 Sup. Ct. 341]. Such answers are tolerated in Youngs v. Kent, 46 N. Y. 672, in Allis v. Leonard, Id. 688, and in Calhoun v. Hallen, 25 Hun, 155. The New York Code of Civil Procedure of 1876 (section 500) requires the defendant, when he denies only a part of the plaintiff's allegations, to make the denial specific. Under this new section the denial given in the text is held to be radically bad, in Thierry v. Crawford, 33 Hun, 366. In Potter v. Frail, 67 How. Pr. 445, the New York Superior Court pointedly condemns this form of denial as contrary to the statute, and holds it bad when the question is raised before trial, whether by demurrer or by special motion. The cases to the contrary are explained

of Appeals, however, has sustained such a denial, when it clearly appears what facts are denied, and calls it a good general denial.5 In Minnesota "a denial of each and every statement and averment and every part of the same save as hereinafter stated, admitted or qualified," is held to be good,5% and in North Carolina an answer denying the "said complaint and each and every allegation contained therein," was stricken out.57

In the two last named states the language of the statute in each differs from that of the other, and from that usually employed, which fact may warrant the diverse ruling.

§ 331a. Continued.

When the statute, in general terms and without qualification, permits a general or special denial I can see no objection to an admission of certain facts and a general denial of all others, provided it distinctly appears what facts are admitted and what denied, and so unequivocally that an indictment for perjury would lie upon the denial. It may be more convenient-it will make a neater rec ord, and present an equally definite issue-to tender it in this way. I will suppose that the drawer of a sight bill is sued by the payee, who avers the drawing, the presentation, upon a certain day, the refusal to pay, and sets out the facts showing due protest and

by showing that the question was raised after having gone to trial. The opinion remarks that a general denial is only proper when the whole complaint or one of its counts can be properly denied; a specific denial is proper when it cannot be wholly denied, only some of its statements, in which case the others stand admitted by saying nothing about them.

55 Griffin v. Long Island R. Co., 101 N. Y. 348 [4 N. E. 740]. The question arose in resisting a judgment upon the verdict, but the opinion, per Earl, J., says: "The denial in this answer of 'each and every allegation of the complaint not hereinabove admitted or controverted,' is a good general denial. What had before been admitted and controverted was clearly specified, and hence, there was no doubt or confusion as to the application of this general denial." In Clark v. Dillon, 97 N. Y. 370, a similar denial was held bad, because it did not clearly appear what facts were denied.

56 Kingsley v. Gilman, 12 Minn. 515 (Gil. 425). The doctrine of this case is followed in Becker v. Sweetzer, 15 Minn. 427 (Gil. 346), and in Leyde v. Mar tin, 16 Minn. 38 (Gil. 24).

57 Schehan v. Malone, 71 N. C. 440.

notice. The real controversy is concerning the time of the presentation and of notice. The defendant, in such case, will admit the drawing of the bill, and deny all the other facts which would create a liability on his part. In denying the presentation, it would not do to say that the bill was not presented for payment on the day named, for that would be a negative, pregnant with the affirmative fact that he might have presented it on some other day, and, besides, would present an immaterial issue; but he must go further, and deny its presentation within any period that would be held to be reasonable. And so with the notice; the complaint may allege that the plaintiff on the same day notified the defendant, etc. A denial that he notified him on the same day would also be a negative pregnant, and the denial must be broad enough to put in issue any legal notice. But suppose the defendant, instead of thus specially denying these facts, adds to the admission as above a general denial of all the facts, not thus admitted; would not these facts be put in issue just as definitely as though the general denial had been to the whole complaint? In either case the plaintiff would be obliged to prove a legal presentation and a legal notice, and in the one the same as in the other.

A specific denial must be certain and definite as to the fact denied; thus, a denial of the rendition of service in a certain capacity is not a denial of employment in such a capacity.58

§ 332. The Negative pregnant.

In treating of the rules of pleading as applied to the complaint, allusion was made to a vice which is peculiar to traverses—that is, to such negatives as imply an affirmative. From its nature, this negative will never be found in a general denial, but it is often seen in a special one, when the pleader, in making it, uses the language of the allegation denied. Thus, in the case given by Mr. Stephen,5* in an action of trespass for entering the plaintiff's house, the defendant pleaded that the plaintiff's daughter gave him license to do so, and that he entered by that license. To this the plaintiff replied that he

58 Ryan v. Mayor, etc., of New York, 42 N. Y. Super. Ct. 202. 5 Steph. Pl. 335, 336; Shipm. Pl. p. 264.

did not enter by her license. of ambiguity, it being uncertain whether the pleader intended to traverse the entry or the license, and as implying that a license was given. Mr. Gould instances a case 6° where defendant pleads in bar a release made since the date of the writ, and the plaintiff replies that the said supposed writing is not his act since the date of the writ. The replication is a negative pregnant, because it admits by implica tion a release made before the date of the writ-an equally effectual bar.

This traverse is condemned as a species

61

This imperfect traverse is sometimes seen where one is called on to answer an allegation of several facts connected by the copulative conjunction, and he answers or replies denying them in haec verbis, which admits that some of the facts may be true. There is no traverse of any one fact, but of the whole as connected or happening together. But it is oftener seen where the statement contains an allegation of a contract or transaction as made or happening upon a day named, when the time is immaterial and the traverse covers the day. In such case it is doubtful whether the party intends to deny the date merely, or the act or transaction. It is treated as a denial of the former, and the denial is pregnant-to use the language of the old pleaders-with an admission of the latter, and hence there is no good issue. It presents, in a sense, an immaterial issue, although not strictly immaterial, inasmuch as it covers apparently what is material as well, while a strictly immaterial issue is only made by a traverse of that which is immaterial. 62

Notwithstanding the provision of the Code requiring the courts to be liberal in its construction-a provision sometimes ignored altogether, and sometimes made an excuse for tolerating great looseness and irregularity-there is a special reason, in states in which it is necessary to make oath to pleadings, why a negative pregnant should not be tolerated. No one could be convicted of perjury who should swear to such a denial, as it is uncertain what fact he intended to deny.83 In Minnesota, while a general denial is admitted, yet, if one

60 Gould, Pl. c. 6, § 30.

61 Young v. Catlett, 6 Duer, 437.

62 Gould, Pl. c. 6, § 31.

63 The authorities upon this subject in the code states are numerous, although not quite harmonious.

In New York the common-law view is held.

of the allegations be of value, it is held to be a negative pregnant as to such allegation. The statute is silent as to whether it should be general or special-the language is, "a denial of each allegation"— but, if general, it would seem to be required to be in such form as to be good if each allegation had been specially denied." In Missouri Kay v. Whittaker, 44 N. Y. 565.

Baker v. Bailey, 16 Barb. 54, gives an excellent illustration of the absurdity of permitting a denial that an event happened at a particular time when time is not material; and Young v. Catlett, 6 Duer, 437, illustrates the ambiguity of a denial in haec verbis of several connected facts. The defendant had denied any knowledge "whether or not, at maturity, the said notes were, or either of them, duly presented to the makers for payment, and payment thereof demanded and refused, and, therefore, duly protested, and notice of such presentment, refusal, and protest given to the said," etc. Upon this, the court remarks: "This is only a denial of knowledge sufficient to form a belief whether these facts or allegations in the complaint, taken conjunctively, are true. Had the defendant been answering of his own knowledge, and had, even in absolute terms, denied that the note was presented, and payment demanded and refused, and, therefore, was duly protested, and notice of such presentment, refusal and protest given, etc., it might still be true consistently with the conjunctive denial, that payment of the note was demanded of the makers. A denial that A., and B., and C., and D. were present on a certain occasion is no denial that B. was present, or that A. and B. were present; and so as to either. A denial that A. went to Rome, and to Egypt, and to Jerusalem, and returned from Jerusalem to New York is not a denial that A. went to Egypt." The court suggested, though did not decide directly, that such a denial put nothing in issue, and the truth of the facts attempted to be denied was admitted. See, also, Blankman v. Vallejo, 15 Cal. 638; Kuhland v. Sedgwick, 17 Cal. 123; Caulfield v. Sanders, 17 Cal. 569; Landers v. Bolton, 26 Cal. 393. And when there are no conjunctive averments, a denial in the very words of the averment is often held to admit a material part of it. Woodworth v. Knowlton, 22 Cal. 164; Bradbury v. Cronise, 46 Cal. 287. A denial that the defendant wrongfully and unlawfully entered upon the premises and closed the windows is an admission that he closed the windows. Larney v. Mooney, 50 Cal. 610. A denial of the exact value alleged is an admission of any less value. Scovill v. Barney, 4 Or. 288. A denial, in the language of the petition, that the defendant carelessly, negligently and wantonly ran over the plaintiff's mare, is not a denial of the injury complained of. Harden v. Atchison & N. R. Co., 4 Neb. 521. A denial that the defendant wrongfully took and detained the plaintiff's goods is not a denial of the taking or the detainer. Moser v. Jenkins, 5 Or. 447.

64 Dean v. Leonard, 9 Minn. 190 (Gil. 176); Pottgieser v. Dorn, 16 Minn. 204 (Gil. 180). In Lynd v. Picket, 7 Minn. 184 (Gil. 128), the remark is made that