§ 513. * 622. Conflict of Authority as to whether a Negative Pregnant raises an Issue. There is not, however, an absolute unanimity among the decided cases. In some instances the courts, avowedly rejecting the common-law rule of strict construction, and applying the requirement of the codes that pleadings must be liberally construed with a view to substantial justice, have held that such denials did raise an issue, although their character as negatives pregnant was fully acknowledged. It will be seen from the decisions to be cited, that no line of distinction can be drawn which separates them from those which precede, and reconciles their conflicting results: different courts have simply pronounced in an opposite manner upon substantially the same facts or circumstances. A petition stated the cause of action in the following manner: "Plaintiff claims of defendant sixty-four dollars, and for a cause of action states that on the 15th day of October, 1867, the defendant set fire to prairie land, and allowed the fire to escape from his control, whereby said fire spread to and consumed sixteen tons of hay, the property of the plaintiff, to his damage," etc. The answer denied "that defendant did on the 15th day of October, 1867, set fire to prairie land by which the hay of the plaintiff was consumed." The Supreme Court of Iowa, in pronouncing judgment, said that defendant's denial "was perfectly consistent with his doing the act on the 14th or the 16th, or on any other day than the 15th." Yet, in view of the rule of liberal construction imposed upon the judges by the code, it held that this answer, though conceded to be a negative pregnant, was not a nullity, but raised an issue.1 The Supreme Court of Missouri applied a like lenient method in an action upon a bill of exchange executed by the National Insurance Company. The petition alleged that the company, "by its draft in writing signed by its secretary," made the obli

deliver at Fairfield, Iowa, to the plaintiffs, S. W. 405. A denial that an execution or either of them, the note, etc.: Spencer was duly returned: St. Paul Fire Ins. Co. v. Turney (1897), 5 Okla. 683, 49 Pac. v. Dakota Land Co. (1897), 10 S. D. 191, 1012. A denial that defendant "negli 72 N. W. 460. An allegation "that Helen gently and carelessly set fire to the V. W. Knight on and prior to the 25th of depot:" Cincinnati, etc. R. R. Co. v. April, 1898, was the owner in fee simple Barker (1893), 94 Ky. 71, 21 S. W. 347. A and entitled to the possession" of the denial "that the killing was done through premises in controversy: Knight v. Denthe carelessness or negligence of defend- man (1903), Neb., 94 N. W. 622.] ant to the damage of the plaintiff :" 1 Doolittle v. Greene, 32 Iowa, 123, Rogers v. Felton (1895), 98 Ky. 148, 32

124.

gation; and the answer in turn denied, "that the company, by its draft in writing signed by its secretary," made the obligation. This answer, it was held, raised an issue. Construing it freely and favorably to the pleader, it could not be treated as a nullity, although its character as a negative pregnant was undoubted.1

§ 514. * 623. The Better Doctrine. If the requirements of the codes as to the mode of forming issues by specific denials are not to be a dead letter, the doctrine supported by the series of decisions first above cited is clearly correct, and the practical rule drawn from them is in every respect superior to the slipshod method of treatment adopted by the other class of cases. To say the least, a denial in the form of a negative pregnant is such a glaring violation of logical and legal principles, that it exhibits on the part of the pleader either the ignorance which does not comprehend the nature of an issue, or the astute cunning which is able to conceal the want of a defence under the appearance of a direct answer. In either instance it should be condemned by the courts.

§ 515.621. Denials cannot properly contain New Matter. It has been shown that all defences are either (1) denials of all, some, or one of the plaintiff's allegations; or (2) affirmative new matter which assumes that the allegations of the complaint or petition cannot be disproved, but at the same time establishes other facts which defeat the right of action. The general denial, we have seen, is a brief and comprehensive formula, denying "each and every allegation of the complaint or petition;" and the special denial is based upon and negatives the single averment against which it is directed. It is utterly impossible, therefore, that a denial, either general or special, if properly framed, should contain any affirmative matter, any allegation of facts in a positive and direct manner as though they constituted new matter and a defence by way of confession and avoidance. A defence consisting in the narrative of facts, stated under

1 First Nat. Bank v. Hogan, 47 Mo. 472. See also Ells v. Pacific R. Co., 55 Mo. 278, 286; and Wall v. Buffalo Water Co., 18 N. Y. 119, in which it was held that the answer should have been corrected on motion, and that, in the absence of such motion, an issue was raised.

[In Feldmann v. Shea (1899), Idaho, 59 Pac. 537, it was held that the words “sold and delivered" as used in a complaint for goods sold and delivered, constitute but one act, and a denial of that act in the conjunctive raises an issue.]

the form of "new matter," which were not, however, new matter, but could all be properly proved under a denial, would be a violation of the true theory of pleading, and of the classification and description of defences contained in all the codes.

§ 516. 625. Pleading New Matter Equivalent to a Denial.. It sometimes happens that the pleader, either mistaking the nature of the facts which will be proved by the defendant, and thinking them to be new matter when in truth they are only the evidence which can be offered in support of a denial, or supposing for some reason that his case will be strengthened by spreading all these details upon the record, sets up a defence either alone or joined with others which is in form "new matter." It consists of affirmative allegations, stated as though they confessed and avoided the plaintiff's cause of action: and yet the facts thus averred are not new matter; they are simply the evidence which can be offered in support of a denial. The defence altogether is therefore the same as a denial: if it goes to the whole complaint or petition, it is equivalent to the general denial; if it goes to some particular allegation or allegations, it is equivalent to one or more specific denials. It is plain that the defendant has gained nothing by such a mode of pleading; he has not added anything to his case; he has not stated a fact which he could not have proved under a simple answer of denial. On the contrary, in limiting the scope of his proofs at the trial to the particular matter which he has pleaded, he may have weakened his defence by shutting out the consideration of other facts which he could have given in evidence under a proper denial. At all events, he has unnecessarily disclosed his case to the adverse party.

66

§ 517.626. Same Subject. This is clearly an unpractical as well as unscientific mode of pleading. Such a defence is an argumentative denial." The same fault which I have thus indicated, sometimes existed under the old procedure. A plea in the form of a special plea by way of confession and avoidance, which contained no matter of that character, but only matter which could be proved under a traverse, and which was therefore equivalent to a traverse, to the general issue perhaps, - was generally bad on demurrer. The objection was, not that the facts thus set up constituted no defence at all, for the very assumption was that they did constitute a defence by way

of traverse, but the external forms of the system were considered to be of such importance, and this faulty pleading so completely violated them all, that it was held to be worthless for any purpose.

§ 518. * 627. Remedy for such a Denial is by Motion under the Codes. The same rules of order and classification are violated by such defences at the present day; but as the new procedure looks rather to the substance than to the form, and as a demurrer to the answer is only allowed on the ground of insufficiency,— that is, when the facts stated do not constitute any defence, the pleading which I have described as an "argumentative denial " is not considered bad on demurrer. The plaintiff's remedy is by motion to make the defence more certain and definite, and to strike out redundant and superfluous matter.2 If such motion was more frequently resorted to, and was favored by the courts, it would soon produce the effect of working a marked improvement in pleadings. It is not merely a scientific blemish, but a great practical evil, to have the record incumbered by a mass of unnecessary allegations, and matters purely evidentiary, when a short and comprehensive denial would the better subserve the rights of the parties, and more clearly bring out and exhibit the issues designed to be raised by the answer.

An ex

§ 519. * 628. Illustrations of Argumentative Denials. ample or two from among the decided cases will be sufficient to illustrate the kind of defence which is equivalent to the denial and the rulings of the courts thereon. An action was brought by the University of Vincennes against one Judah to recover certain bonds alleged to be the property of the institu

1 [Oren v. Board of Commissioners (1901), 157 Ind. 158, 60 N. E. 1019; Hiatt v. Town of Darlington (1898), 152 Ind. 570, 53 N. E. 825; Boos v. Morgan (1896), 146 Ind. 111, 43 N. E. 947; State ex rel. v. Osborn (1895), 143 Ind. 671, 42 N. E. 921; Childers v. First Nat. Bank (1896), 147 Ind. 430, 46 N. E. 825; Nat. Wall Paper Co. v. McPherson (1897), 19 Mont. 355, 48 Pac. 550.]

2 [Oren v. Board of Commissioners (1901), 157 Ind. 158, 60 N. E. 1019. But see Lancashire Ins Co. v. Monroe (1897), 101 Ky. 12, 39 S. W. 434, where the allegations were held not to amount even to an argumentative denial. An argumentative

denial by defendant is sufficient to give the plaintiff the right to open and close: Sorensen v. Sorensen (1903), - Neb. —, 94 N. W. 540]

8 It has been held in New York that an affirmative defence inconsistent with the allegations of the complaint, but not coupled with a denial of such allegations, raises no issue, under the provision of the code that material allegations in the complaint not controverted by the answer, must be taken as true. Beard v. Tilghman (Supreme, 1892), 20 N. Y. Suppl. 736; Fleischman v. Stern, 90 N. Y. 110; [Smith v. Coe (1902), 170 N. Y. 162, 63 N. E. 57.]

tion, which the defendant had converted to his own use. His answer set up, that the university was indebted to him in a large amount for professional services, and that the board of trustees had passed a resolution allowing him to retain and have these bonds as compensation for his services and in settlement of his claim. The reply, instead of denying this answer, averred that Judah had been secretary of the board of trustees; that he fraudulently entered this resolution in the books of record of the university; that no such resolution was ever passed; and it set out the resolution which was actually passed, and which was very different from that alleged in the answer. To the paragraph of the reply containing this matter the defendant demurred; the demurrer was overruled, and he appealed. In disposing of the question thus raised, the court said: "Now, this reply is simply a denial of so much of the answer as alleges the adoption of the resolution, or, in other words, the making the contract by the trustees. It is argumentative, and it needlessly explains how a resolution never made by the trustees comes to be found on their records. This is surplusage. But neither argumentativeness nor surplusage justifies a demurrer under our system of pleading. There was, therefore, no error in overruling the appellant's demurrer to the second paragraph of the reply."1 It is plain that a general denial of this answer would have admitted in evidence all the facts specially pleaded in the reply under the form of new matter; and the reply was, in fact, nothing more than a denial.

§ 520. * 629. Where Answer contains General Denial and also a Special Defence of New Matter Equivalent to General Denial. When the answer contains two or more defences, viz., 1st, a general denial, and, 2d, a special defence in the form of new matter, but in fact equivalent to the general denial, and a demurrer to the latter has been sustained, no material error is thus committed, and the judgment will not be reversed; for the same facts which were averred in the special defence could be fully proved under the general denial, and the defendant's whole case would thus be available under the issue which remained upon the record.2 In an action for goods sold and delivered, the answer in each of

1 Judah v. University of Vincennes, 23 Ind. 272, 277. See also Clink v. Thurston, 47 Cal. 21, 29.

2 Chicago, Cin. & L. R. Co. v. West, 37 Ind. 211, 215; Waggoner v. Liston, 37 Ind. 357.