defendant in his answer, "according to his recollection and belief," is insufficient, and must be treated as a mere evasion.

3221. Upon information and belief. Where the denials are 'upon his information and belief," instead of the statutory language," according to his information and belief," it may well he doubted whether the former mode of denial does not allow a little wider field for evasion, but it has been widely adopted by pleaders, and it is now settled that it is sufficient.ε1 § 3222. Denial of knowledge sufficient to form a belief. Form No. 705.

[TITLE.]

The defendant answers to the complaint:

That he has no knowledge, information, or belief sufficient to enable him to answer any or either of the allegations in said complaint contained, and, therefore, he denies each and every of said allegations. [Or if confined to one allegation, after the word "answer" proceed] the allegation that [set out the allegation, or refer to it so as to clearly identify it]; and, therefore, denies the same.

§ 3223. Form of denial, when sufficient allegation of ignorance. A mere allegation of ignorance of the facts alleged will be insufficient to raise an issue, and the facts so attempted to be controverted will be held admitted.82 Under the former practice in California the defendant was not allowed to deny for want of information or belief, but now he may.8 83 He must answer positively, or state how it is that he is without knowledge of such facts. The duty of acquiring the requisite knowledge

84

80 Harr Ch. Pr. 181, 182; Coop. Eq. Pl. 341; Taylor v. Luther, 2 Sumn. 228.

81 Vassault v. Austin, 32 Cal. 606; Roussin v. Stewart, 33 id. 211; Jones v. City of Petaluma, 36 id. 230; Kirstein v. Madden, 38 id. 158; see First Nat. Bank v. Slattery, 38 N. Y. Supp. 859.

82 Wood v. Staniels, 3 Code R. 152; Elton v. Markham, 20 Barb. 343; Sayre v. Cushing, 7 Abb. Pr. 371. In what cases a party may deny the allegation of a pleading from want of sufficient knowledge or information to form a belief, see Lewis v. Acker, 11 How. Pr. 163; Nicoll v. Haas, 39 N. Y. Supp. 205; Rosentile v. Van Cott, 39 id. 53.

83 Cal. Code Civ. Pro., § 437.

84 Vassault v. Austin, 32 Cal. 597; Brown v. Scott, 25 id. 189; Richardson v. Wilton, 4 Sandf. 708; Shearman v. New York Cent. Mills, 1 Abb. Pr. 187; Fales v. Hick, 12 How. Pr. 153.

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or information is imposed by statute on the defendant, to enable him to answer in the proper form.8 A denial as to a material allegation, or as to all the allegations of a complaint, of any knowledge or information sufficient to form a belief, forms a complete issue.86 It is not necessary to add, "and therefore denies," " 87 unless it be acts of the defendant which are charged in the complaint.88

§ 3224. Insufficient forms. A denial of knowledge merely is not sufficient. If not positive, the denial must be of knowledge or information sufficient.89 That defendant "does not know of his information or otherwise; >> 90 or that defendant "is not informed, and can not state; or "that defendant has no

" 91

85 San Francisco Gas Co. v. San Francisco, 9 Cal. 453; Fish v. Redington, 31 id. 185; Hance v. Remming, 1 Code R. (N. S.) 204; Mott v. Burnett, 2 E. D. Smith, 50.

86 New York Code, ed. 1877, § 500; Hutchings v. Moore, 4 Met. (Ky.) 110; Chadwick v. Booth, 22 How. Pr. 23; Union Bank v. Mott, 13 Abb. Pr. 247; Caswell v. Bushnell, 14 Barb. 393; Sherman v. Bushnell, 9 How. Pr. 171; Duncan v. Lawrence, 3 Bosw. 103; Metropolitan Bank v. Lord, 4 Duer, 630; Townsend v. Platt, 3 Abb. Pr. 325; Robert Gere Bank v. Inman, 51 Hun, 97; Roby v. Hallock, 5 Abb. N. C. 86; Flood v. Reynolds, 13 How. Pr. 112; King v. Ray, 11 Paige Ch. 236; Leach v. Boynton, 3 Abb. Pr. 3; Wesson v. Judd, 1 id. 254; Temple v. Murray, 6 How. Pr. 329; Wales v. Chamblin, 19 Mo. 500; Ames v. St. Paul & P. R. R. Co., 12 Minn. 412; Roby v. Hallock, 55 How. Pr. 412; Kitchen v. Wilson, 30 N. C. 192; McPhail v. Hyatt, 29 Iowa, 137; Treadwell v. Commissioners, 11 Ohio St. 183; McKenzie v. Washington Life Ins. Co., 2 Disney, 223; Jackson Sharp Co. v. Holland, 14 Fla. 384; Maclay v. Sands, 94 U. S. 586; Wilson v. Allen, 11 Oreg. 154; Colburn v. Barrett, 21 id. 27; Read v. Buffum, 79 Cal. 77; People v. Swift, 96 id. 165; Cumins v. Lawrence County, 2 S. Dak. 452; affirming S. C., 1 id. 158; National Bank v. Meerwaldt, 8 Wash. St. 631. In Montana procedure, a denial in a pleading that, as to a fact alleged, the pleader" has no knowledge or information sufficient to form a belief and, therefore, denies the same," is insufficient to present an issue. Rossiter v. Loeber, 18 Mont. 372; State v. Water Co., id. 199.

87 Flood v. Reynolds, 13 How. Pr. 112; Sackett v. Havens, 7 Abb. Pr. 371, note; Morris v. Parker, 3 Johns. Ch. 297..

88 Sloan v. Little, 3 Paige Ch. 103; but see Cal. Code Civ. Pro., 437, which says he may place his denial on that ground.

89 Edwards v. Lent, 8 How. Pr. 28; Ketcham v. Zerega, 1 E. D. Smith, 553; People v. McCumber, 15 How. Pr. 189; see, also, James v. McPhee, 9 Col. 486; Haney v. People, 12 id. 345; Jones v. Perot, 19 id. 141.

90 Sayre v. Cushing, 7 Abb. Pr. 371.

91 Elton v. Markham, 20 Barb. 348.

94

knowledge," or "that defendant is ignorant whether," or "that defendant has not sufficient knowledge or information whereon to found a belief," or "that defendant does not know or believe," are not sufficient denials.92 Nor that he has no "recollection concerning it; " 93 nor " that he is ignorant of whether," etc. But if he admitted his belief, he need not deny information.95 So, where he has the means of informing himself, such a denial would be insufficient." But in other cases such a denial is sufficient in New York.97 A denial of any knowledge or information that the copy of the instrument set out in the complaint was correct, after admitting that an instrument of that character had been executed by defendant, is a frivolous denial; or that judgment was obtained against defendant;99 or of a note made by partner;100 or that the note was transferred by defendant;101 or whether plaintiff is owner and holder of a note indorsed and delivered by defendant.102 An answer which denies that the defendant has any knowledge of the facts charged, without adding that he had no information or belief of them, is defective. 103 The allegation of death of plaintiff's ancestor in a verified complaint is not sufficiently controverted by the averment in the answer that defendant has not sufficient knowledge to form a belief," and, therefore, neither admits or denies.104 The allegation must be positive that he has no information or belief sufficient to enable him to answer.105 92 Mott v. Burnett, 1 Code R. (N. S.) 225; approved, 2 E. D. Smith, 50; Robinson v. Woodgate, 3 Edw. 422.

66

93 Nichols v. Jones, 6 How. Pr. 355.

94 Wood v. Staniels, 3 Code R. 152.

95 Davis v. Mapes, 2 Paige, 105.

96 Hance v. Remming, 2 E. D. Smith, 48.

97 Doran v. Dinsmore, 33 Barb. 86; 29 How. Pr. 503; Brown v. Ryckman, 12 id. 313.

98 Wesson v. Judd, 1 Abb. Pr. 254; see, however, Kellogg v. Baker, 15 id. 287; Goodell v. Blumer, 41 Wis. 436.

99 Ketcham v. Zerega, 1 E. D. Smith, 555; Elmore v. Hill, 46 Wis. 618.

100 Mott v. Burnett, 1 Code R. (N. S.) 225; S. C., 2 E. D. Smith, 50. 101 Fales v. Hicks, 12 How. Pr. 153.

102 Kamlah v. Salter, 6 Abb. Pr. 226; see, contra, Temple v. Murray, 6 How. Pr. 329; Snyder v. White, id. 321; Genesee Mut. Ins. Co. v. Moynihen, 5 id. 321.

103 Bradford v. Geiss, 4 Wash. C. C. 513.

104 Anderson v. Parker, 6 Cal. 197.

105 Cal. Code Civ. Pro., § 437. An answer placing a denial of an averment of the complaint, on the ground of want of information

Vol. II-75

If the defendant admits that he executed an instrument upon which he is sued, he can not deny information sufficient to form a belief as to the facts recited in the instrument, or that the instrument is correctly stated in the complaint. But he is entitled to an inspection of the original, to enable him to answer.1 106 But a party is not presumed to recollect the date or contents of a written instrument not in his possession.107 Where an answer denied "any knowledge or information sufficient to form a belief, whether or not a notice was served on " the defendant as required by law," it was held that the averment made issue only as to the lawfulness of the notice, and not as to the fact of notice.108

3225. Presumption of knowledge. When suit is upon a promissory note, it is presumed the defendant knows whether or not he made the note.109 In an action to recover from the defendants a deposit made in their hands in California, it was alleged in the complaint that they were copartners, and as such doing business in California, and elsewhere, as bankers and common carriers. The answer alleged that the defendants had never been in California, had never personally transacted business there, and had no personal knowledge and no information sufficient to form belief, and, therefore, denied that the plaintiff made such deposit. It was held that such allegation was not irrelevant. From the allegation in the complaint, without explanations, the presumption would be that the money was deposited with the defendants in person, and that they had personal knowledge thereof, and consequently they could not be permitted to deny that allegation on information and belief, without first rebutting the presumption; and the statement was relevant and proper for that purpose.'

110

sufficient to enable the defendants to answer the same, without also averring that they have no belief on the subject sufficient to enable such answer, is insufficient to raise an issue. Naftzger v. Gregg, 99 Cal. 83.

106 Wesson v. Judd, 1 Abb. Pr. 254.

107 Kellogg v. Baker, 15 Abb. Pr. 286.

108 Soeding v. Bartlett, 35 Mo. 90.

109 Gas Company v. San Francisco, 9 Cal. 465.

110 Doran v. Dinsmore, 20 How. Pr. 503.

Alleges that he has no knowledge or information other than is afforded by said [pleading], that [reciting allegation] and can not, therefore, admit, but on the contrary he denies, etc.

§ 3227. Form of denial. This mode of denial is sanctioned by the Code of Ohio; and this form is sustained by State of Ohio ex rel. Treadwell v. Commissioners of Hancock, 11 Ohio St. 183. But it would be useless as a denial under the California practice, and on motion would be stricken out. "Has no knowledge or information of certain facts except from certain documents," is insufficient, if they are not set forth and not answered according to belief.111 Where the answer is verified, one defendant can not deny knowledge, etc., on the part of the other. The denial, therefore, should in general be made severally." In cases in which a copy of an instrument in writing is annexed to the petition as part thereof, the correctness of the copy can not be regarded as the material allegations in the petition; but the petition is to be regarded as alleging the substantial effect of the instrument, which is shown by the copy. An answer must meet the allegations as if such was the form of the petition.113 This is the rule under the Ohio practice. § 3228. Denial of knowledge, explaining cause of ignorance. Form No. 707.

112

[TITLE.]

The defendant answers to the plaintiff's complaint:

I. That he denies that he has ever been within the state of that he ever personally transacted any business

therein.

II. Denies that he did at the time stated, or at any other time, do or say [state what].

§ 3229. Corporation - acts of agents. Acts done by the agent of the defendant are also within this rule; and it applies to the case of a corporation defendant, for a corporation can as well know the acts of their agent as anything else.114

111 Cuyler v. Bogert, 3 Paige Ch. 186. 112 See Kinkaid v. Kipp, 1 Duer, 692.

113 Bentley v. Dorcas, 11 Ohio St. 398.

114 Shearman v. New York Cent. Mills, 1 Abb. Pr. 187; affirming 8. C., sub nom. Thorn v. N. Y. Cent. Mills, 10 How. Pr. 19.