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the value of twenty-five thousand dollars, or any other sum greater than the sum of two thousand five hundred dollars, avers that the plaintiff has not sustained damage to exceed the latter sum, it puts in issue the value of the property, or the amount of the damages so far as they are laid at more than the latter sum.62 Such denial should cover the whole ground either of the complaint itself or of that portion of it to which it is intended to apply,63 and present a clear and complete issue in substance as well as in form.64 The failure of a defendant to deny the charges in a complaint, making out a prima facie case for the plaintiffs, will throw the onus on defendant in proving his affirmative allegations. Where the answer failed to deny in such form as to put in issue any material allegations of the complaint, the plaintiff is entitled to judgment for the full amount.66 An answer consisting of denials only is not amendable as of course.67

§ 3173. General denial. Under the Code system of practice, a general denial is equivalent to the general issue.68 But special matters of defense, as excuse or justification of an alleged trespass, a public or private right of way, or any interest in land short of property, or right of possession, must still be pleaded, and are not available under a general denial.69 It puts the plaintiff upon proof of all the facts necessary to entitle him to recover, except as to the genuineness and due execution. of note, etc.;70 and upon not merely every fact alleged, but also upon all implications and conclusions of law arising out of those facts.71 There is no such thing as the common-law general issue under the Code of New York,72 although the

62 Hill v. Smith, 27 Cal. 476; Nunan v. San Francisco, 38 id. 689. 63 Harpham v. Haynes, 30 Ill. 404; Loosey v. Orser, 4 Bosw. 391. 64 Dimon v. Dunn, 15 N. Y. 498.

65 Thompson v. Lee, 8 Cal. 275; Cal. Code Civ. Pro., § 462.

66 Doll, Adm'r, v. Good, 38 Cal. 287.

67 Plumb v. Whipples, 7 How. Pr. 411; Farrand v. Herbeson, 3 Duer, 655.

68 White v. Moses, 11 Cal. 69.

69 American Co. v. Bradford, 27 Cal. 367.

70 Wand v. Packard, 18 Cal. 391.

71 Bellinger v. Craigue, 31 Barb. 534; Academy of Music v. Hackett, 2 Hilt. 217; Lord v. Chesebrough, 4 Sandf. 696.

721 Van Santv. Pl. 406; Fay v. Grimsteed. 10 Barb. 321; Houghton v. Townsend. 8 How. Pr. 441: Stoddard v. Onondaga Conf., 12 Barb. 574; Catlin v. Gunter, 1 Duer, 253.

general denial is in most respects like it.73 Under the general denial, evidence of a distinct affirmative defense is not admissible.74 Such as payment.75 It is otherwise held in California, where it is said the effect of the plea is to deny the indebtedness.76 In actions of assumpsit the general rule is that any evidence which disaffirms the obligation of the contract at the time suit is commenced is admissble under the general issue.77 Evidence of any attendant circumstances tending to show that plaintiff has no cause of action against the defendant, is admissible under a general denial.78 If an answer, in response to an allegation of the complaint, instead of denying it in express terms, contains the averment that the defendant did not commit the act charged, or that the facts alleged to exist do not exist, these averments of the answer traverse the matters alleged, and are good denials of the same.79

§ 3174. Literal and conjunctive denials. Under our practice, and that of the common law, a specific denial of one or more allegations is held to be an admission of all others well pleaded.80 It has also been held by our courts, that a specific denial to each allegation of a complaint is a separate denial applicable only to the specific allegation controverted,81 as the object of the Code in allowing the plaintiff to verify is to narrow the proof on the trial, and compel the defendant to deny specifically each separate allegation.82 And the defendant must either deny

73 Livingston v. Finkle, 8 How. Pr. 486. Under Colorado practice there is no general denial nor general issue, and each material allegation must be specifically traversed. Watson v. Lemen, 9 Col. 200.

74 Terry v. Sickles, 13 Cal. 430; Beaty v. Swarthout, 32 Barb. 293. 75 Walters v. Washington Ins. Co., 1 Clarke (Iowa), 404; McKyring v. Bull, 16 N. Y. 297; 69 Am. Dec. 696; Edson v. Dillaye, 8 How. Pr. 273.

76 Wetmore v. San Francisco, 44 Cal. 299.

77 1 Chit. Pl. 465; Young v. Rummell, 2 Hill, 478; 38 Am. Dec. 598; Boyd v. Weeks, 5 Hill, 393.

781 Van Santv. Pl. 252; Bridges v. Paige, 13 Cal. 640; Miller v. Decker, 40 Barb. 228; MacDonnell v. Buffum, 31 How. Pr. 154; Robinson v. Corn Ex. Ins. Co., 1 Abb. Pr. (N. S.) 186.

79 Hill v. Smith, 27 Cal. 479.

80 De Ro v. Cordes, 4 Cal. 117.

81 San Francisco Gas Co. v. San Francisco, 9 Cal. 453; Seward v. Miller, 6 How. Pr. 312.

82 Gas Company v. San Francisco, 9 Cal. 453.

the facts alleged, or confess and avoid them.83 The rules of pleading under our system are intended to prevent evasion, and to require a denial of every specific averment in a sworn complaint, in substance and in spirit, and not merely a denial of its literal truth; and whenever the defendant fails to make such denial, he admits the averment.84 It is now the settled law that where defendant denies plaintiff's proposition in a verified complaint, as a whole and as conjunctively stated, it is alike in violation of the principles of common-law pleading, as well as the express direction of our statute; and thus an answer to a verified complaint should contain a specific denial to each allegation of the complaint controverted, or a denial thereof according to the defendant's information and belief. The denial should be in the disjunctive, although the allegations of the complaint are stated in the conjunctive.85 But in New York the doctrine, it would seem, has been qualified.86

If an allegation of a complaint consists of several clauses or propositions connected by the copulative conjunction “and,” a denial of the entire allegation is evasive and insufficient. Each proposition should be separately denied.87 Where several allegations of a complaint are not connected by the conjunction "and," a denial in the answer of these allegations conjunctively does not amount to a denial of the allegations to which the defendant professes to respond.88

Literal denials, following the very words of the complaint, are insufficient. So where the answer denied the allegations of

83 Piercy v. Sabin, 10 Cal. 22; 70 Am. Dec. 692; Fish v. Redington, 31 Cal. 185.

84 Blankman v. Vallejo, 15 Cal. 638; Castro v. Wetmore, 16 id. 380; Higgins v. Wortel, 18 id. 333; Morrill v. Morrill, 26 id. 292; Camden v. Mullen, 29 id. 564; Blood v. Light, 31 id. 215; Toland v. Mandell, 38 id. 30; Doll v. Good, id. 287.

85 Reed v. Calderwood, 32 Cal. 109; Burke v. Carruthers, 31 id. 467; Fish v. Reddington, id. 194; Brown v. Scott, 25 id. 195; Kuhland v. Sedgwick, 17 id. 123; Hensley v. Tartar, 14 id. 508; Wise v. Rose, 110 id. 159; Salinger v. Lusk, 7 How. Pr. 430; Davison v. Powell, 16 id. 467; Shearman v. New York Central Mills, 1 Abb. Pr. 187; Baker v. Bailey, 16 Barb. 54; Young v. Catlett, 6 Duer, 443; Beach v. Barons, 13 Barb. 305; Livingston v. Hammer, 7 Bosw. 670; Otis v. Ross, 8 How. Pr. 193; King v. Ray. 11 Paige Ch. 235; Elton v. Markham, 20 Barb. 343; Blake v. Eldred, 18 How. Pr. 240. 86 Wall v. Buffalo Water Works, 18 N. Y. 119.

87 More v. Del Valle, 28 Cal. 170: Mulcahy v. Buckley, 100 id. 484. 88 Fitch v. Bunch, 30 Cal. 208; Leroux v. Murdock, 51 id. 541.

indebtedness as to the time, amount, and work, in the very words of the complaint, it was held that the answer raised an immaterial issue upon these particulars.89 So where the form of the allegation was that defendant "unlawfully and wrongfully seised and took said property into his possession from said plaintiff," and defendant denied "that he (defendant) wrongfully and unlawfully seised, took or carried away the said property," it was held that the fact defendant took the property from the plaintiff was not denied but admitted.90

An averment in the complaint that the act was "wrongfully and maliciously done," and a denial in the answer that it was "wrongfully and maliciously done," does not put in issue the doing of the act.91 But an allegation in a complaint that the assignment which the plaintiff seeks to set aside was made with intent to hinder, delay, and defraud creditors, etc., is sufficiently put in issue by a denial that the assignment was made with intent to hinder and defraud creditors.92

An allegation in a sworn answer that "on a certain day the said French and Robinson, by deed duly executed, acknowl80 Caulfield v. Sanders, 17 Cal. 569; see, also, Republican Pub. Co. v. Mosman, 15 Col. 399.

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90 Woodworth v. Knowlton, 22 Cal. 164; Richardson v. Smith, 29 id. 531. Negative pregnant.— As a general rule, a denial in the precise language of the complaint is not good, but is a negative pregnant," which is often held to admit a material part of the averment. See Rock Spring Coal Co. v. Sanitarium Co., 7 Utah, 158; Dillon v. Spokane County, 3 Wash. Ter. 498; Argard v. Parker, 81 Wis. 581; Bradbury v. Cronise, 46 Cal. 287; Lawrence v. Cabot, 9 Jones & Sp. 122; Moser v. Jenkins, 5 Oreg. 448; Caldwell v. Caldwell, 45 Ohio St. 520. Thus, a denial that the defendant wrongfully and unlawfully entered upon the premises, and closed the window," is an admission that he closed the window therein. Larney v. Mooney, 50 Cal. 610. So, in replevin to recover possession of a city warrant which the plaintiff alleges came into its hands by indorsement, an answer alleging "that whether said warrant came into the hands of the plaintiff as alleged, this defendant has no knowledge or information sufficient to form a belief, and he, therefore, denies the same," is an insufficient denial, for the reason that it constitutes a negative pregnant. National Bank v. Meerwaldt, 8 Wash. St. 630; and see Collins v. Publishing Co., 20 N. Y. Supp. 892. So, an allegation in an answer, that each and every of four separate causes of action set forth in the complaint did not accrue within six years," contains a negative pregnant, and is bad pleading. Gammon v. Dyke, 2 Wash. Ter. 266.

91 Kinsey v. Wallace, 36 Cal. 463.

92 Read v. Worthington, 6 Bosw. (N. Y.) 617.

edged, and recorded, conveyed said premises to this defendant, for the sum of seven thousand seven hundred and fifty dollars," is not denied by a statement in the replication that "the plaintiffs further deny that said French and Robinson, or either of them, conveyed said premises to the defendant for the sum of seven thousand seven hundred and fifty dollars, or for any other sum." Such denial does not deny the conveyance, the material fact, but only a conveyance for a consideration. Under .such denial, the party making such averment is not required to offer his deed in evidence on the trial. The allegation of the answer is deemed admitted under the provisions of the statute.93

§ 3175. Denial of legal conclusions. If the answer merely denies a conclusion of law resulting from the facts contained in the complaint, it is insufficient;94 and the facts stated in the complaint will be deemed admitted.95 A denial that the defendant became or was lawfully bound by a judgment declared on, is only a denial of a conclusion of law.96 Nor is it a denial in an action for the possession of personal property to allege that defendant did not at any time wrongfully take and detain the property from the plaintiff.97 Or in ejectment that defendant did not wrongfully and unlawfully enter and dispossess the plaintiff. This is an admission rather than denial.98 So a denial that the plaintiff has any interest whatever in the premises mentioned in the complaint is insufficient. So of an averment that "the plaintiff is not the real party in interest, nor is he an executor," etc. 100 So of an answer which, without denying any fact stated in the complaint, merely says that "the defendant denies that the plaintiff is entitled to the money

03 Landers v. Bolton, 26 Cal. 416.

99

94 Steph. Pl. 180; 1 Chit. Pl. 645; 1 Van Santv. Pl. 416; Nelson v. Murray, 23 Cal. 338; Wormouth v. Hatch, 33 id. 128; Lightner v. Menzell, 35 id. 452; Christy v. Dana, 42 id. 174; Turner v. White, 73 id. 299; Lake v. Steinbach, 5 Wash. St. 659; Witherspoon v. Van Dolar, 15 How. Pr. 266; Drake v. Cockroft, 4 E. D. Smith, 34; S. C., 10 How. Pr. 377; S. C., 1 Abb. Pr. 203; Fosdick v. Groff, 22 How. Pr. 158; Holgate v. Broome, 8 Minn. 243; Hoopes v. Meyer, 1 Nev. 433. 95 Nelson v. Murray, 23 Cal. 338.

96 People v. Supervisors of San Francisco, 27 Cal. 655.

97 Richardson v. Smith, 29 Cal. 529.

98 Busenius v. Coffee, 14 Cal. 93; Lay v. Neville, 25 id. 549.

99 Bentley v. Jones, 4 How. Pr. 202.

100 Russell v. Clapp, 3 Code R. 64; S. C., 4 How. Pr. 347.

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