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" 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.

what issues they raise; III. Allegations admitted by omitting to deny; IV. Denials in the form of negatives pregnant; V. Argumentative denials, and specific defences equivalent to the general denial; VI. General denial of all allegations not otherwise admitted or explained; VII. What allegations must be denied,— issuable facts, and not conclusions of law; VIII. Denials of information or belief, when proper, and their effect; IX. What can be proved under denials either general or specific; X. Some special statutory rules in reference to denials.

§ 612. The discussion which follows, and the practical rules deduced therefrom, are based in the first place upon the assumption that the denials, whether general or specific, are positive in their nature. The conclusions which are reached apply, however, with equal force and effect, to those cases in which the denials are of information or belief. The only object of the latter form is, that the defendant may be enabled to put the plaintiff's allegations in issue when he is obliged to verify his answer, and cannot do so from his own personal knowledge: the effect and efficacy of the traverse are not diminished nor in any manner altered by the use of this method when it is properly employed.

I. The External form of Denials, General or Specific.

§ 613. Under the common-law system there were several distinct species of the "general issue" and of particular traverses, each appropriate to and only to be used in some one of the different forms of action, or to put in issue certain classes of allegations; but all these have been abolished in the reformed procedure. One form of the general denial is sufficient for all actions and for all issues; and although it may undergo slight and unimportant variations, it is substantially the same in all the States, and in the hands of all members of the bar. The material averment, modified doubtless in its phraseology, is, that the defendant "denies each and every allegation of the complaint or petition." The form in common use is, "The defendant, for answer to the complaint herein, denies each and every allegation thereof." It is of course impossible to describe the forms of any

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1 This form is slightly varied in the standard text-books upon pleading, and in the actual practice of the bar: but this is

entirely sufficient; any additional matter would be superfluous.

specific denial. From its very name and nature, it is the special traverse of some particular averment found in the plaintiff's pleading, and must therefore depend to a very great degree upon the matter and shape of the statement which is thus controverted. How far it should merely follow and negative the exact language of the allegation to which it is directed, will be considered under the subsequent head of the section which treats of denials in the form of a negative pregnant. It will there be shown that such an exact adherence to the text of the adverse averment may be dangerous, as the result may be an admission of the substantial fact intended to be put in issue.

II. The Nature and Object of Specific Denials.

§ 614. The object of all denials is to put in issue the allegations of the complaint or petition. As will be shown hereafter under the head of the proofs which may be admitted in support of a simple denial, it is only the issuable facts which need to be controverted, and which are in fact controverted, by the defendant's traverse. It frequently, and indeed generally, happens that the cause of action depends upon the existence of a succession or group of facts. Each of these must be established in order to make out the right of action, and all are therefore "issuable facts." In addition thereto, the plaintiff's pleading will often contain other averments which must be stated, but which need not be proved as stated, among which are those of time, place, number, quantity, value, and the like. Finally, it happens too frequently, that besides the statements of these strictly “issuable facts," which are all that the pleading should comprise, the plaintiff has unnecessarily, and in a certain sense improperly, introduced averments of matters which are really the details of evidence from which the existence of the "issuable facts" is to be inferred by the jury or the court. It is not always easy to distinguish in a complaint or petition between the main conclusions of fact, the issuable or material facts, -all and each of which are indispensable to create the right of action, and the mere details of evidence which must be proved at the trial in order to establish the essential "issuable facts;" and the careless mode of pleading which has grown up in some States, contrary to the true intent and spirit of the reformed procedure, results chiefly from a disregard of the distinction here mentioned, and is shown

in a confused admixture of evidentiary matter, allegations of substantial facts, and conclusions of law, in the same complaint or petition.

§ 615. When the series of issuable facts which would make up the plaintiff's cause of action are properly stated, it will frequently happen, especially if the pleadings are verified, that the defendant cannot deny them all. Some of them may be true, so that an issue upon them is impossible. But if one or more are not true, and can therefore be controverted, and if the existence of all is indispensable to the right of action, a denial of that particular allegation, or of those particular allegations, may be as complete a defence as though the entire series. was traversed and disproved. The forming such an issue upon some one or more particular averments out of the whole number contained in the complaint or petition is the legitimate and proper office of the "special denial," and by its use in this manner an ample defence may be placed upon the record. A "specific denial" is therefore a denial of some particular averment in the complaint or petition; and whether or not it alone raises a material issue, and constitutes a sufficient defence, depends upon the question, whether the particular allegation thus traversed is in itself essential to the maintenance of the cause of action. There may, of course, be several such specific denials inserted in the same answer, directed to distinct averments of the adverse pleading, and together constituting a defence differing from that raised by the "general denial" in the single circumstance, that by the latter all the issuable facts are put in issue, while by the former only a portion of them are controverted. As each specific denial is aimed at a particular averment, it should expressly and unmistakably point out the statement of fact intended to be traversed; it should deny that allegation fully and explicitly, so that the plaintiff may be forced to establish it by proofs; and it should leave no doubt as to the matter at which it is aimed, and as to the issue intended to be made.

§ 616. The object of this kind of denial, and the rules which govern its use, were accurately stated in a recent case: "To determine whether an allegation has been properly denied or not, we must examine the answer to the particular allegation which it is designed to controvert. If, taken by itself, an issue is fairly made, and there is no admission inconsistent with the answer,

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the denial is sufficient. . . . Each denial must be regarded as applying to the specific allegation it purports to answer, and not as forming part of an answer to some other specific and entirely independent allegation." A single case, an abstract of which is placed in the foot-note, will serve to illustrate the object and effect of the specific denial.2 As the defendant in this action could not controvert his signature to the instrument, the pleader evidently supposed that it was impossible for him to deny the execution in the answer since the pleadings were verified; he therefore traversed but one issuable fact, the delivery. Success in this issue was as complete a defence as though the execution had also been disproved. It is plain, however, that the "general denial" might have been pleaded; for, if the defence was true, there had never been any execution or delivery of the note in the legal sense of these terms.3

III. Allegations admitted by a Failure to Deny.

§ 617. All the codes provide that material allegations in the complaint or petition, not controverted by a general or specific

1 Racouillat v. Rene, 32 Cal. 450, 453, 455, per Sawyer J.; and see Allis v. Leonard, 46 N. Y. 688.

2 Sawyer v. Warner, 15 Barb. 282, 285. The complaint, in an action upon a promissory note, alleged the making of the note by the defendant, the delivery thereof by the defendant to the plaintiff, the present ownership of the plaintiff, non-payment, and indebtedness of the defendant thereon in the amount specified therein. The answer merely denied that the defendant ever "gave" the said note or any other note to the plaintiff, and denied all indebtedness. On the trial, the plaintiff proved the signature of the note to be in the defendant's handwriting, and his own possession. The body of the instrument was in the plaintiff's handwriting. The defendant then proved facts tending to show that he never executed the instrument as a note, and never delivered it to the plaintiff, but that he had some time written and left his name on a blank paper, and the plaintiff had fraudulently added the body of the note over such signature. The jury rendered a verdict for the defendant; and, upon the

plaintiff's appeal, the court said: "The allegation in the answer that the defendant never gave the note to the plaintiff is a denial of the allegation in the complaint that the defendant made the note, so far as making includes delivery; and also of the further allegation, that the defendant delivered the note to the plaintiff. The question to be tried on these allegations was, whether or not the note was delivered to the plaintiff as alleged by him. . . . The plaintiff made out this fact prima fucie. . . . But the defendant was at liberty, in support of his side of the issues, independent of other modes, to prove facts inducing a contrary presumption, and, in that way, overcome the presumption from the plaintiff's proof; and he was entitled to give in evidence any facts calculated to satisfy the jury by fair and direct inference that the note was never delivered by him."

3 See Higgins v. Germaine, 1 Montana, 230; also Van Dyke v. Maguire, 57 N. Y. 429 (denial of value alone in action for labor and materials); Dunning v. Rumbaugh, 36 Iowa, 566, 568 (denial of execution only in an action on a note).