which the above-described essential elements result as inferences more or less direct, may vary with each particular instance of the same species of cause of action. The former class of facts are material, issuable, and, when the theory of pleading in legal actions is strictly observed, they alone should be averred, and they alone should be treated as put in issue by the denials, general or specific: the second class of facts the proper evidentiary matter-should not be pleaded, and, if improperly averred, should not be regarded as put in issue by the denials of the defendant. This is the true theory, and is again and again commended by the courts; but, at the same time, it is constantly violated by the same courts in their requirements in respect to the pleading in certain species of causes of action. Another source of difficulty in applying the elementary doctrine is found in the circumstance, that not infrequently the material, issuable fact which must be averred, and which is put in issue, is identical with the fact which must be actually given in evidence. In respect of such matters there are no steps and grades, and processes of combination and deduction, by which the issuable fact alleged is inferred from the evidentiary fact proved. The two are one and the same; and thus matter which is truly evidence must in such case be alleged, and matter which is the proper subject of allegation must be directly given in evidence.

§ 545. 669. Allegations of Legal Conclusions not Controverted by General Denial. Another and the final element which should belong to the averments in the complaint, in order that an issue may be raised thereon by the denial, is, that they must be of fact, and not of law. This particular topic has already been treated of in a former subdivision of the present section. The reformed system of pleading, unlike that of the common law, authorizes no issues to be raised by allegations of legal conclusions, and denials of the same. Although there are traces to be found in some of the cases of the ancient forms of averment in indebitatus assumpsit and in debt, and of answers resembling the plea of nil debet, yet all the decisions of present authority unite in theoretically condemning such a mode of pleading. I need not, however, dwell upon this particular rule, nor again refer to cases which have been so recently cited. An allegation of law in the plaintiff's pleading is not controverted by the defendant's denial:

no issue is formed thereby under which evidence can be admitted from either party. § 546. * 670.

Denials.

General Nature of Evidence Admissible under The judicial opinions quoted under the preceding head sufficiently establish the principle which controls all the questions embraced under the present, and the cases to be cited in the following one will illustrate the application of that principle. In fact, it is so intimately bound up with the subject last discussed, that it has already been stated and explained. I shall, however, recapitulate and restate this fundamental doctrine. The material allegations of the complaint or petition, when denied either generally or specifically, determine in each case what evidence and what defences may be given and established by the defendant. It is impossible to say of any class of cases, that such or such evidence can or cannot be offered as a matter of certain rule, or that such or such a defence can or can

not be set up. As the plaintiff is bound by no inflexible rule as to the form of his pleading, and as to the averments he may choose to introduce into it, so he can widen or contract within distant extremes the extent and nature of the evidence and defences which may be interposed by the defendant under a denial.1 As the denial puts in issue all the material allegations of fact made by the plaintiff, whether originally necessary or not, he is at liberty to introduce all and any legal evidence which tends to sustain those allegations. On the other hand, under the same issue, the defendant is entitled to offer any evidence which tends to contradict that of the plaintiff, and to deny, disprove, and overthrow his material averments of fact.2 This is the fundamental and most comprehensive doctrine of pleading embraced in the new procedure, and it of course determines the nature of the defences which may be set up under a general denial. It is to be observed - although the remark is perhaps unnecessary

that the defendant may in this manner attack any material allegation of fact, and thus, if possible, defeat the recovery, while the others are left unanswered or unassailed. 3

1 See Chicago, Cin. & L. R. Co. v. West, 154; Scott v. Morse, 54 Iowa, 732; Roe 37 Ind. 211, 215.

2 [Bay View Brewing Co. v. Grubb (1901), 24 Wash. 163, 63 Pac. 1091.]

As further illustrations of the text, see Jones v. Seward Cy. Com'rs, 10 Neb.

v. Angevine, 7 Hun, 679; Manning v. Winter, 7 id. 482; Boomer v. Koon, 6 id. 645; Andrews v. Bond, 16 Barb. 633; Beaty v. Swarthout, 32 id. 293; Schermerhorn v. Van Allen, 18 id. 29; Scharz

§ 547. * 671. Evidence Proper under Denials may be Affirmative or Negative. As the allegations of the complaint or petition controverted by the denials of the answer determine the nature and extent of the evidence admissible under such denials, it follows that this evidence may be sometimes negative and sometimes affirmative. Herein lies the source of much confusion and uncertainty as to the character of the defendant's proofs and defences, and as to their admissibility under the general denial. Evidence in its nature affirmative is often confounded with defences which are essentially affirmative and in avoidance of the plaintiff's cause of action, and is therefore mistakenly regarded as new matter requiring to be specially pleaded, although its effect upon the issues is strictly negative, and it is entirely admissible under an answer of denial. In other words, in order that evidence may be proved under a denial, it need not be in its own nature negative: affirmative evidence may often be used to contradict an allegation of the complaint, and may therefore be proved to maintain the negative issue raised by the defendant's denials. One or two familiar examples will sufficiently illustrate this proposition. In certain actions, property in the plaintiff, in respect of the goods which are the subject-matter of the controversy, is an essential element of his claim. His complaint, therefore, avers property in himself: the allegation is material, and is, of course, put in issue by the general or specific denial. To maintain this issue on his part, the plaintiff may give evidence tending to show that he is the absolute owner, or has the requisite qualified property. The defendant may controvert this fact in two modes. He may simply contradict and destroy the effect

r. Oppold, 74 N. Y. 307, 309; Hier v. Grant, 47 id. 278; Dunham v. Bower, 77 id. 76; Brown v. College Cor. Gt. Co., 56 Ind. 110.

1 [In Jeffersonville, etc. Co. v. Riter (1896), 146 Ind. 521, 45 N. E. 697, the court said: "A defendant, under the general denial, is not confined to negative proof in denial of the facts stated in the complaint as a cause of action, but may, upon the trial, introduce proof of facts independent of those alleged in the complaint, but which are inconsistent therewith, and tend to meet and break down or defeat the plaintiff's cause of action."

See also Hess v. Union State Bank (1900), 156 Ind. 523, 60 N. E. 305; Jones v. Rush (1900), 156 Mo. 364, 57 S. W. 118; Alpert v. Bright (1902), 74 Conn. 614, 51 Atl. 521; Van Skike v. Potter (1897), 53 Neb. 28, 73 N. W. 295; Phelps v. Skinner (1901), 63 Kan. 364, 65 Pac. 667.

This rule was approved by the Supreme Court of South Carolina in Wilson v. Railway Co. (1897), 51 S. C. 79, 28 S. E. 91, where it was held that the defence that an injury was caused by a fellow servant was admissible under the general denial, quoting the text at length.]

of the plaintiff's proofs, and in this purely negative manner procure, if possible, a decision in his own favor upon this issue. The result would be a defeat of the plaintiff's recovery by his failure to maintain the averment of his pleading: but the jury or court would not be called upon to find that the property was in any other person; the decision would simply be, that the plaintiff had not shown it to be in himself. On the other hand, the defendant, not attempting directly to deny the testimony of the plaintiff's witnesses, and to overpower its effect by directly contradictory proofs, may introduce evidence tending to show that the property in the goods is, in fact, in a third person. This evidence, if convincing, would defeat the plaintiff's recovery. It would be affirmative in its direct nature; but its ultimate effect, in the trial of the issue raised by the answer, would be to deny the truth of the plaintiff's averment. Such evidence, although immediately affirmative, would still, for the purpose of determining the issue presented by the pleadings, be negative. Again: in an action on a promissory note against the maker or indorser, the complaint might allege title in the plaintiff, and the fact that he was the owner and holder thereof. The answer of denial would put this averment in issue, as it would be material, and its truth essential to the recovery. Proof by the defendant, that, prior to the commencement of the action, the plaintiff had assigned the note to a third person, would be affirmative in its immediate nature, but negative in its effect upon the issue; for it would controvert the truth of the plaintiff's allegation. Cases cited under the next subdivision hold that the evidence which I have thus described in both of these examples is admissible under the general denial.

§ 548. * 672. Distinction between General Issue and Plea of

Confession and Avoidance at Common Law not the same as that between General Denial and New Matter under the Code. The theory of the general denial is completed by considering what evidence cannot be given, and what defences cannot be set up, under it. This subject will be discussed at large in the following section: but some reference to it is appropriate in the present connection. The codes divide defences into denials and new matter. New matter must be specially pleaded. Defences at the common law were separated into traverses general and special, and pleas by way of confession and avoidance. The

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general traverses were the general issues, and special traverses were denials of some particular allegation. The common-law distinction between these classes of defences was generally stated by the text-writers as follows: The general issue, when used in accordance with the original theory in those actions which admitted its full efficacy, put in issue the entire cause of action, and under it the defendant was permitted to offer any evidence and set up any defence which showed that the right of action never, in fact, existed. The plea by way of confession and avoidance, on the other hand, did not deny the facts from which the cause of action arose. It admitted or confessed" that a cause of action once existed as averred, and set up other and subsequently occurring facts which showed that the right after it had occurred had been in some manner discharged, satisfied, or defeated. Is it possible to draw the same distinction between the general denial and the new matter of the code? I answer, It is not. Such a distinction, although correct in many instances, is not true absolutely. One reason for this is, that the plaintiff may so frame his complaint or petition, may insert in it allegations of such a sort, that a general denial will admit proof of facts which would be strictly matter by way of confession and avoidance under the former procedure. Certain passages in judicial opinions which have identified the "new matter" of the codes with the pleas by way of confession and avoidance of the common law, are, therefore, inaccurate: they were written by their authors in forgetfulness of the inherent difference between the fixed forms of the common-law declarations, and the varying forms of the complaints and petitions which may properly, though not perhaps scientifically, be used under the new system. To illustrate: Payment after breach of a contract, and therefore after a cause of action arose, is certainly matter by way of confession and avoidance; and yet a complaint may be so drawn that payment will not be new matter, but will be provable under a general denial. Other examples might be given; but this single one suffices.

§ 549.673. Same Subject. The result is, that the new matter of the code does not, like the matter in confession and avoidance of the common law, depend upon the essential nature of the cause of action and of the defence, but, like the effect of the general denial, it depends primarily upon the nature of the material allegations which are embraced in the complaint. Any facts