respect to an answer which stated that "the defendant has not sufficient knowledge or information to form a belief whether [certain allegations] are true, and therefore denies the same.” 1

1 Curtis v. Richards, 9 Cal. 33; Ste- The following forms have been held invenson v. Flournoy, 89 Ky. 561; contra, sufficient:-"Defendant says that he has Cumins v. Lawrence Cy. (S. Dak. 1890), not information sufficient to form a be46 N. W. Rep. 182. As to the proper lief:" Sigmund v. Bank of Minot (1894), form of such denials, and their effect in 4 N. D. 164, 59 N. W. 966. An averment raising issues when thus proper, see also that defendant has no knowledge or inforKentucky, etc. Co. v. Commonwealth, 13 mation sufficient to form a belief, since Bush, 436; Farmers' & Merch. Bk. of there must be a direct denial and not Baltimore v. Charlotte Bd. of Ald., 75 merely an affirmation of a negative: Law N. C. 45; Sherman v. Osborn, 8 Ore. 66; Trust Society v. Hogue (1900), 37 Ore. Ninde v. Oskaloosa, 55 Iowa, 207; Claflin 544, 63 Pac. 690. A denial that defendv. Reese, 54 id. 544; Neuberger v. Webb, ant has "any knowledge or information 24 Hun, 347; Meehan v. Harlem Sav. Bk., sufficient to form a belief," since under 5 id. 439; Grocers' Bank v. O'Rorke, 6 id. the statute he must deny also that he 18; Wiltman v. Watry, 37 Wis. 238; Peo- could obtain sufficient knowledge: Jones v. ple v. Curtis, 1 Idaho, 753. For further Perot (1893), 19 Colo. 141, 34 Pac. 728. examples of such denials improper in "This defendant has not and cannot obform, see Bidwell v. Overton, 26 Abb. N. tain information sufficient upon which to Cas. 402; Sheldon v. Sabin, 12 Daly, 84; base a belief," defective in not stating the Lay Gas Machine Co. v. Neuse Falls Mfg. same as to both knowledge and informaCo., 91 N. C. 74; Land, etc. Co. of G. B. v. tion: Grand Valley Irr. Co. v. Lesher Williams (S. C. 1892), 14 S. E. Rep. 821, (1901), 28 Colo. 273, 65 Pac. 44. An alle15 id. 453; Greer v. Covington, 83 Ky. gation that defendant "has no knowledge 410; Haney v. People, 12 Colo. 345; of the facts" alleged in one paragraph of Moody v. Belden, 60 Hun, 582. the complaint, and "has no information" respecting the truth of the allegations in another paragraph: Woodcock v. Bostic (1901), 128 N. C. 243, 38 S. E. 881. An allegation "that defendaut has not sufficient knowledge or information as to the claim of the plaintiff, and therefore demands and calls for strict legal proof thereof: "National Life Ins. Co. v. Martin (1899), 57 Neb. 350, 77 N. W. 769. An allegation that defendant has no knowledge or information concerning the matter alleged in the petition: Wilson v. Neu (1901), - Neb. -,95 N. W. 502.

[The following forms have been held sufficient::-"Whether the matters and things set forth [in said paragraph] are true or false, defendant has no knowledge or information sufficient whereof to form a belief and he therefore denies the same:" Seattle Nat. Bank v. Meerwaldt (1894), 8 Wash. 630, 36 Pac. 763. A denial of any knowledge or information sufficient "to enable it to form a belief," although the statute uses the words, "sufficient to form a belief: " Wilson v. Commercial Union Ins. Co. (1902), 15 S. D. 322, 89 N. W. 649. Plaintiff " denies that it has any knowledge or information sufficient to form a belief as to the truth of the allegations contained in said answer," held good, as against the objection that it was a negative pregnant, when objec. tion was first made after trial and verdict: Trustees v. Nesbitt (1896), 65 Minn. 17, 67 N. W. 652. A denial that plaintiff "has knowledge or information sufficient, etc.," is sufficient without the word "any" before knowledge, as the statute reads: Gilreath v. Furman (1900), 57 S. C. 289, 35 S. E. 516.

"To authorize the denial of an allegation in a petition, a want of belief is sufficient; and it is not improper to accompany the denial with a statement that the party making it has no knowledge or information on which to form a belief:" McIntosh v. City of Omaha (1902), Neb., 91 N. W. 527. A denial of knowledge or information sufficient to form a belief as to the existence of an alleged fact must be specific as to such fact: Ward v. Edge (1897), 100 Ky. 757, 39 S. W. 440. Other cases dealing with the subject: Banks v. Moshier

§ 532. * 641. When a Denial of Knowledge or Information is not allowed. Although the denial of knowledge or information may be used in respect to every form of traverse, whether general or specific, yet it cannot be resorted to under all circumstances. There are occasions in which the defendant will not be permitted to say that he has no knowledge or information of the matter sufficient to form a belief, because such a statement would be a palpable falsehood, a plain impossibility. When the allegation in the complaint or petition is of a fact which must of necessity be within the personal knowledge of the defendant; when it avers an act done or an omission suffered by him personally; when, for example, it states a contract entered into, or a deliberate wrong perpetrated, by himself, he must know whether the averment is true or false. He will not be suffered to assert a

(1900), 73 Conn. 448, 47 Atl. 656; Sayles v. FitzGerald (1899), 72 Conn. 391, 44 Atl. 733; Smith v. Allen (1901), 63 Neb. 74, 88 N. W. 155; Jacobs v. Hogan (1900), 73 Conn. 740, 49 Atl. 202. The Georgia statute is somewhat different from that found in most of the code States: Code, § 4961 (1895), "Any averment distinctly and plainly made therein [in the petition], which is not denied by the defendant's answer, shall be taken as prima facie true, unless the defendant states in his answer that he can neither admit nor deny such averment because of the want of sufficient information." For cases construing it see Lester v. McIntosh (1897), 161 Ga. 675, 29 S. E. 7; English v. Grant (1897), 102 Ga. 35, 29 S. E. 157; Smith v. Champion (1897), 102 Ga. 92, 29 S. E. 160; Angier v. Equitable Bldg. Ass'n (1899), 109 Ga. 625, 35 S E. 64.

Denials upon Information and Belief: "The better rule is that a denial made upon 'information and belief' is sufficient when made in a certain class of cases. In strictness, it is the only proper form of denial in a case where, with reference to the fact sought to be denied, defendant has certain information which induces him to believe that such facts are untrue, and yet has not absolute knowledge that such facts are untrue. Having information inducing a belief which falls short of knowledge, defendant cannot truthfully deny that he has neither knowledge nor information

sufficient to form a belief as to the fact." Russell v. Amundson (1894), 4 N. D. 112, 59 N. W. 477. See also Warburton v. Ralph (1894), 9 Wash. 537, 38 Pac. 140; Seattle Nat. Bank v. Meerwaldt (1894), 8 Wash. 630, 36 Pac. 763.]

1 [Raymond v. Johnson (1897), 17 Wash. 232, 49 Pac. 492; Sweet v. Davis (1895), 90 Wis. 409, 63 N. W. 1047; Bartow v. Northern Assurance Co. (1897), 10 S. D. 132, 72 N. W. 1135; Nashville, etc. R. R. Co. v. Carrico (1894), 95 Ky. 489, 26 S. W. 177; Sloane v. Southern Cal. Ry. Co. (1896), 111 Cal. 668, 44 Pac. 320; Gribble v. Columbus Brewing Co. (1893), 100 Cal. 67, 34 Pac. 527; Wickersham v. Comerford (1894), 104 Cal. 494, 38 Pac. 101; Mills' Estate (1902), 40 Ore. 424, 67 Pac. 107.

Matters of public record are presumptively within the knowledge of the parties, and denials of information and belief are insufficient: Thompson v. Skeen (1896), 14 Utah, 209, 46 Pac. 1103; Mullally v. Townsend (1897), 119 Cal. 47, 50 Pac. 1066; First Nat. Bank v. Martin (1898), Idaho, 55 Pac. 302; Simpson v. Remington (1899), Idaho, 59 Pac. 360; First Nat. Bank v. Watt (1901), Idaho, 64 Pac. 223; Van Dyke v. Doherty (1896), 6 N. D. 263, 69 N. W. 200; Oakes v. Ziemer (1901), 62 Neb. 603, 87 N. W. 350; s. c. (1900), 61 Neb. 6, 84 N. W. 409.

A denial of knowledge or information that plaintiff is a corporation, is not suffi

defective memory, for such a forgetfulness is contrary to the general experience of mankind. If his recollection is at fault, the law affords him ample opportunity and means of refreshing it during the interval between the service of the adverse pleading and the time for answering. A denial, therefore, of the form described, pleaded in answer to allegations of a nature purely personal to the defendant, will be treated as sham and evasive, and will be struck out on motion. A demurrer would not be the proper remedy; because the objection is not to the sufficiency as a defence, but to the bad faith of the party in interposing a pleading of such a character. The rule was accurately stated by Mr. Justice Field of the California Supreme Court substantially as follows: "If the facts alleged are presumptively within the knowledge of the defendant, he must deny positively, and a denial of information or belief will be treated as an evasion. Thus, for example, in reference to instruments in writing alleged to have been executed by the defendant, a positive answer will alone satisfy the requirements of the statute. If the defendant has forgotten the execution of the instruments, or doubts the correctness of their description, or of the copies in the complaint, he should, before answering, take the requisite steps to obtain an inspection of the originals. If the facts alleged are not such as must be within the personal knowledge of the defendant, he may answer according to his information and belief." 1

cient to put in issue the question of the plaintiff's corporate existence: Stoddard Mfg. Co. v. Mattice (1897), 10 S. D. 253, 72 N. W. 891; Board of Education v. Prior (1898), 11 S. D. 292, 77 N. W. 106; Iowa Savings, etc. Ass'n v. Selby (1900), 111 Ia. 402, 82 N. W. 968. Nor will such a denial put in issue the execution of a written instrument: Winterfield v. Cream City Brewing Co. (1897), 96 Wis. 239, 71 N. W. 101; Garland v. Gaines (1900), 73 Conn. 662, 49 Atl. 19; Moore v. Holmes (1897), 68 Minn. 108, 70 N. W. 872.]

Curtis v. Richards, 9 Cal. 33, 38. See also, to the same effect, Wing v. Dugan, 8 Bush, 583, 586; Jackson Sharp Co. v. Holland, 14 Fla. 384, 386. The rule stated in the text is also sustained by the following cases: Huffaker v. Nat. Bk. of Monticello, 12 Bush, 287; Gridler v. Farmers' &

D. Bank, 12 id. 333; Barret r. Godshaw, 12 id. 592; Goodell v. Bloomer, 41 Wis. 436; Union Lumb. Co. v. Chippewa Cy. Sup., 47 id. 245; Collart v. Fisk, 38 id. 238; Hathaway v. Baldwin, 17 id. 616; see Brotherton v. Downey, 21 Hun, 436. Further instances of such denials disallowed, as concerning matters presumptively within the knowledge of the defendant: Buller v. Sidell, 43 Fed. Rep. 116; Sherman v. Boehm, 13 Daly, 42; Wheaton v. Briggs, 35 Minn. 470; Loveland . Garner, 74 Cal. 298. Instances of such denials which did not come within the operation of the rule, and were therefore allowed: Martin v. Erie Preserving Co., 48 Hun, 81; Harvey v. Walker, 59 Hun, 114; Hall v. Woodward, 30 S. C. 564; Hagman v. Williams, 88 Cal. 146.

§ 533. * 642. Outline of Proposed Treatment of Issues Raised by Denials. In discussing the topics embraced within this subdivision, the same doctrines apply both to general and to specific denials. The only difference is in respect to the extent of their effect and operation. The general denial raises an issue with the entire complaint or petition, and admits evidence in contradiction to all the plaintiff's material allegations; while the specific denial raises an issue with the particular allegation alone to which it is directed, and only admits evidence in contradiction thereto. The same rules as to the effect of the general denial upon the issue raised with the whole complaint, and the proofs admissible under it, apply with equal force to the specific denial in respect to the narrower issue which it creates and the evidence which it admits. It will only be necessary, therefore, to discuss the objects and functions of the general denial, since the results of this discussion will be true of specific denials within their limited operation. In pursuing this discussion, I shall inquire into the nature and effect of the general denial and the issues formed by it; the general nature of the evidence which may be admitted, and the defences which may be set up under it; and I shall state and classify a number of particular defences, and matters of defence, which have been held admissible or not admissible, or, in other words, a number of particular defences which have been determined to be defences by way of denial, or to be new matter.

§ 534. *643. Importance of Questions Suggested. No topic connected with the whole subject of pleading is, I think, more important than the questions thus suggested. Undoubtedly, much of the confusion, redundancy, and unscientific character of pleadings under the codes is the result of ignorance or uncertainty as to the power of the general denial to admit defences upon which the defendant relies. In very many instances the answer is made a long and rambling mass of purely evidentiary details, when the simple general denial, not exceeding two or three lines in length, would be fully as efficacious, and would present the issue in a sharper and clearer manner. The general denial is in some respects broader in its scope, and in some respects narrower, than the general issues as a whole at the common law. But little aid can be obtained from the rules which

1 See Coles v. Soulsby, 21 Cal. 47, 50, per Field C. J.

governed the use of the latter traverses, except by way of

contrast.

$535. *657. The General Denial. McKyring v. Bull. 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 wherever 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 lastmentioned 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.2

[$$ * 658, * 659. These sections of the author's text, consisting of quotations from McKyring v. Bull, will be found in the note.3]

1 McKyring v. Bull, 16 N. Y. 297, decided in 1857.

2 McKyring v. Bull, 16 N. Y. 297, 299. The opinion concludes as follows: 'My conclusion, therefore, is, that neither pay. ment 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."

8 § 658. The discussion of the second question presented in this case is so complete and instructive, that I adopt it as