§ 560. * 684. Special Statutory Provisions as to Denials in Actions on Written Instruments. In Indiana, in actions upon written instruments against the original parties, makers, indorsers, acceptors, obligors, and the like, an unsworn general denial puts in issue only the existence of the writing, and requires its production; but does not put in issue its execution, and therefore admits no evidence tending to dispute the signature of the defendant or any other facts included within the execution. If verified, the denial puts in issue both the execution and the existence. The rule is different, however, in actions against the executors or administrators of deceased parties to written instruments: the unverified general denial pleaded by them raises a complete issue.2 An unverified general denial also admits the plaintiff's legal capacity to sue in Indiana. A statute of Iowa enacts that, in actions or defences on written instruments, "the signature or indorsement thereto shall be deemed genuine and admitted, unless the party whose signature it purports to be shall deny the same under oath in the pleading." In an action upon a promissory note against the maker, the defendant pleaded an unverified general denial, and under it insisted as a defence that he did not sign the writing as a note, but executed it with the supposition that it was a simple receipt. This defence being objected to as inadmissible, the court held that the statute referred only to the genuineness of the signature, and did not prohibit the defendant from showing that he did not execute such a contract as the one in suit, but executed an entirely different instrument, for example, a receipt, and that the same had been altered into a note.1 In another case upon a note the petition set it out in hæc verba, averring that it was executed by the defendant. The answer was verified, but simply denied knowledge or information sufficient to form a belief whether the allegations of the petition were true. This form of verified denial, it was held, did not comply with the requirements of the statuť? in question, and raised no issue in respect of the signature.5

1 [Burns' St., 1901, § 367.] Stebbins v. Goldthwaite, 31 Ind. 159; Evans v. Southern Turnp. Co., 18 Ind. 101; Price v. Grand Rapids & Ind. R. Co., 18 Ind. 137; Hicks v Reigle, 32 Ind. 360.

2 Cawood's Adm. v. Lee, 32 Ind. 44; Riser v. Snoddy, 7 Ind. 442; Mahon's Adm. v. Sawyer, 18 Ind. 73.

8 Downs v. McCombs, 16 Ind. 211; Jones v. Cin. Type Foundry, 14 Ind. 89; Heaston v. Cincinnati & Ft. W. R. Co., 16 Ind. 275; Harrison v. Martinsville & F. R. Co., 16 Ind. 505.

+ Lake v. Cruikshank, 31 Iowa, 395. 5 Hall v. Etna Man. Co., 30 Iowa, 215, 217, 218. See Lyon v. Bunn, 6 Iowa, 48.

§ 561. *685. General Denial cannot be struck out as Sham. The general denial, at least when verified, cannot be struck out as sham on motion. In accordance with the settled rule of the former procedure, the general issue could not be struck out for such cause; and in this respect the general denial is its equivalent. “It gives the defendant the same right to require the plaintiff to establish by proof all the material facts necessary to show his right to a recovery as was given by that plea [the general issue]." 2

The same rule applies to a denial, general in form, of certain specified allegations constituting a part of the complaint,' and is applicable as well to equitable as to legal actions,2 and to all partial denials, and is not restricted to those which are verified.1

SECTION FOURTH.

THE DEFENCE OF NEW MATTER.

§ 562.686. Introductory. Much of what might properly be included in this section has already been necessarily dwelt upon in discussing the defence of denials. The two subjects so correlate and support each other, that the one cannot be explained in full without, to some extent, explaining the other also. I shall not repeat the propositions and definitions given in the last section, but shall content myself with adding examples and illustrations drawn from decided cases. The subject-matter of this section will be distributed into three subdivisions: I. How defences of new matter should be pleaded; II. What is new matter in general, with a particular reference to defences in mitigation and those in abatement; and, III. Some particular examples of new matter classified and arranged.

I. How Defences of New Matter should be pleaded.

§ 563. *687. Statement of New Matter in Answer Governed by same Rule as Statement of Cause of Action in Petition. A denial when properly pleaded does not state any facts; it simply denies facts. A defence of new matter, on the other hand, does not deny any facts; it assumes the averments of the complaint or petition to be true; and under the ancient system a plea of confession and avoidance must give color to these averments, or it would be fatally defective. The "giving color" was simply the absence of any denials, and the express or silent admission that

1 [Standard Sewing Mach. Co. v. Henry (1894), 43 S. C. 17, 20 S. E. 790; State ex rel. v. King (1894), 6 S. D. 297, 60 N. W. 75; Gjerstadengen v. Hartzell (1899), 8 N. D. 424, 79 N. W. 872; Larson v. Winder (1896), 14 Wash. 647, 45 Pac. 315. But see Upton v. Kennedy (1893), 36 Neb. 66, 53 N. W. 1042.]

2 Thompson v. Erie R. Co., 45 N. Y. 468, 472.

8 Claflin v. Jaroslauski, 64 Barb. 463. 4 Brooks v. Chilton, 6. Cal. 640.

5 See Venice v. Breed, 65 Barb. 597, 603, per Mullin J., for a statement of the comparative effects of denials and of new matter in raising issues.

the declaration, as far as it went, told the truth. The defence of new matter consists, therefore, of facts, positive facts; and these should be averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint. The defence of new matter depends upon the existence of facts from which it results as truly as the cause of action results from other facts. The rule for setting forth the facts which constitute the defence is, therefore, the same as that for setting forth the facts which constitute the cause of action.3 In each case, all the material, issuable facts which make up the cause of action or the defence must be averred, while the detail of mere evidentiary matter should properly be left to be used as proofs at the trial. I need not further enlarge upon this proposition, but will illustrate it by a few judicial decisions. Thus it is a settled rule that, when fraud is relied upon as a defence, a general allegation charging fraud or a fraudulent intent will not suffice: all the facts which the law requires as the elements of fraud, and all which are claimed to be the constituents of the fraud in the particular case, must be averred; and their absence may destroy the intended effect of the pleading, and shut out all evidence in its support at the trial.1

1 Under the new procedure, in every defence of new matter there should be, either expressly or by implication, a confession that, but for such new matter, the action could be maintained; the defence must contain no denial; such denial should be pleaded in a separate defence, if at all. Morgan v. Hawkeye Ins. Co., 37 Iowa, 359; Anson v. Dwight, 18 Iowa, 241. This is nothing more than the simple rule that two distinct defences should not be mingled together.

2 [Where an answer by way of new matter alleges conclusions only, it is subject to general demurrer: Van Dyke v. Doherty (1896), 6 N. D. 263, 69 N. W. 200.]

3 [In an action for conversion, an answer which refers to the " property mentioned and described in the second paragraph in plaintiff's second cause of action," is sufficiently definite and not demurrable for want of certainty: Spalding v. Allred (1901), 23 Utah, 354, 64 Pac. 1100.

New matter in the answer may be alleged on information and belief where not

in effect a denial of allegations in the complaint presumptively within defendant's knowledge: Risdon v. Davenport (1894), 4 S. D. 555, 57 N. W. 482. See note 1, p. 757.]

:

4 Jenkins v. Long, 19 Ind. 28, 29, per Frazer J.: "At the common law, fraud could be given in evidence under the general issue, or under a general plea of fraud. But, under the code, fraud must be specially pleaded; and the answer of fraud must contain all the elements necessary to be proved to make out the fraud and these are, that the representation must go to a material fact; must be made under such circumstances that the party had a right to rely on it; and it must be false to a material extent." Keller v. Johnson, 11 Ind. 337. In an action on notes, a defence, “that he was induced to execute the notes mentioned by the fraud, covin, and deceit of the," etc., was held bad on demurrer. Capuro v. Builders' Ins. Co., 39 Cal. 123; Oroville & Va. R. Co. v. Plumas Cy. Sup., 37 Cal. 354; Kent v. Snyder, 30 Cal. 666; Fankboner v. Fank

§ 564. * 688. Further Illustrations. Akin to the defence of fraud is that of duress: the facts constituting the duress must be stated, and a mere general averment will not suffice; as, for example, in a suit to foreclose a mortgage given by a married woman upon her own land, a defence that "she was induced by the coercion of her said husband to execute the said mortgage." 1