§ 312. Certainty and positiveness in answering.

The allegations in an answer must be positive; otherwise, the issue will be joined on the mere statement of the belief of the parties, not on their allegations of fact.92 The defendant must confess or traverse positively and with certainty the substance. of each material allegation in the bill. Particular and precise charges must be answered particularly and precisely, though the general answer amounts to a full denial.98 As a general rule, it is not enough to deny every allegation of the bill not expressly admitted to be true.94 The answer must not be argumentative.95 Omissions and evasions are proper subjects of animadversion, and calculated to weaken its force.96 A denial of two allegations conjunctively is not a sufficient denial of each.97 Where, to a bill by stockholders complaining of a certain act of a board of directors, the answer averred that such act had been ratified by the shareholders, but did not state the time, manner, or circumstances thereof, the answer was held to be insufficient." 98

§ 313. Answering on knowledge, information, and belief.

A defendant must answer as to his knowledge, remembrance, information, and belief, according to the general requisition in the bill. Generally, where matters charged in the bill as the acts of the defendant himself are of such a nature that he can be presumed to recollect them, if they ever took place, a positive answer is required.99 But it is said that where the act

92 Coale v. Chase, 1 Bland (Md.) 136.

93 Woods v. Morrell, 1 Johns. Ch. (N. Y.) 103.

94 Holton v. Guinn, 65 Fed. 450. See post, § 314.

95 Young v. Mitchell, 33 Ark. 222; McKim v. Mason, 2 Md. Ch. 510; Jones v. Wing, Har. (Mich.) 301.

98 Gamble v. Johnson, 9 Mo. 605; Grady v. Robinson, 28 Ala. 289. 97 Pierson v. Ryerson, 5 N. J. Eq. 196.

98 Eidman v. Bowman, 58 Ill. 444, 11 Am. Rep. 90.

Cooper, Eq. Pl. 300; 1 Barbour, Ch. Pr. 133; Hall v. Wood, 1 Paige (N. Y.) 404; Sanderlin v. Sanderlin, 24 Ga. 583; Noyes v. Inland & Seaboard Coasting Co., MacArthur & M. (D. C.) 1; Bailey v. Wilson, 21 N. C. 182; Grady v. Robinson, 28 Ala. 289; Dinsmoor v. Hazelton, 22

charged did not occur within six years, that is regarded as an exception to the rule.100 An answer denying on information and belief matters as to which the defendant's knowledge, if any, must be direct and personal, is insufficient. Lack of knowledge must be directly stated. A denial on information and be lief does not raise an issue.101 A defendant is allowed to state that he is informed of a certain fact by a person named, which information he believes to be true, if the fact is not within his own knowledge.102 When facts are not within his knowledge, he must answer as to his information and belief, and not as to his information or hearsay, only, without stating his belief one way or the other.103 When a defendant answers that he has not any knowledge or information of a fact charged in the bill, he is not bound to declare his belief one way or the other. It is only when he states a fact upon information or hearsay that he is required to state his belief or unbelief.104 Where a bill does not charge the facts to be within the knowledge of the defendant, he is permitted to answer as to his information and belief; and such an answer is always deemed sufficiently responsive to the bill.105 A denial of knowledge and information is not equivalent to a denial of belief.106

N. H. 535; Jones v. Wing, Har. (Mich.) 301; King v. Ray, 11 Paige (N. Y.) 235; Devereaux v. Cooper, 11 Vt. 103; Brooks v. Byam, 1 Story, 296, Fed. Cas. No. 1,947; Reed v. Cumberland Mut. Fire Ins. Co., 36 N. J. Eq. 146; Norton v. Warner, 3 Edw. Ch. (N. Y.) 106; Robinson v. Woodgate, 3 Edw. Ch. (N. Y.) 422.

100 Carey v. Jones, 8 Ga. 516.

101 Burpee v. First Nat. Bank of Janesville, 5 Biss. 405, Fed. Cas. No. 2,185; McAllister v. Clopton, 51 Miss. 257; Mead v. Day, 54 Miss. 58; Brown v. Pierce, 7 Wall. (U. S.) 211; Commonwealth Title Insurance & Trust Co. v. Cummings, 83 Fed. 767.

102 Norton v. Woods, 5 Paige (N. Y.) 260; Quackenbush v. Van Riper, 1 N. J. Eq. 476.

103 Dinsmoor v. Hazelton, 22 N. H. 535; Woods v. Morrell, 1 Johns. Ch. (N. Y.) 103; Bailey v. Wilson, 21 N. C. 182; Kinnaman v. Henry, 6 N. J. Eq. 90.

104 Morris v. Parker, 3 Johns. Ch. (N. Y.) 297.

105 Jones v. Hawkins, 41 N. C. 110; Robinson v. Mandell, 3 Cliff. 169, Fed. Cas. No. 11,959; Cuyler v. Bogert, 3 Paige (N. Y.) 186.

106 Bond v. Duer, 3 Phila. (Pa.) 207. Lord Clarendon made an

§ 314. Denials and admissions in answer.

An admission or allegation of fact in the answer will not

order which is thus stated: "An answer to a matter charged as the defendant's own act must be direct, without saying that it is to his remembrance or as he believeth, if it be laid to be done seven years before, unless the court, upon exception taken, shall find special cause to dispense with so positive an answer.” In Hall v. Bodily, 1 Vern. 470, decided after the order of Lord Clarendon, the defendant answered that he received no more than the sum of £— to his remembrance, and it was held so far a good answer. Where the facts are such that it is probable he cannot recall them so as to answer more positively, the denial of the facts according to his knowledge, recollection, and belief will be sufficient. Hall v. Wood, 1 Paige (N. Y.) 404. If the negative averments in the plea of an executor relate to transactions in the lifetime of the testator, or the acts done by others, it is sufficient if the averments are made upon the defendant's belief only. Drew v. Drew, 2 Ves. & B. 160; Heartt v. Corning, 3 Pafge (N. Y.) 566. Where an answer sets up a bona fide purchase without notice by the grantor, the defendant is permitted to state upon his information and belief, merely, that such grantor had no constructive notice of the complainant's claim at the time of purchasing. Griffith v. Griffith, 9 Paige (N. Y.) 315. An answer which does not deny the averments in which the equity of the bill consists, but states "that respondent does not believe, and cannot admit, that said attorney made any such arrangements or contract as set forth in the bill," is not sufficient. Kent v. Ricards, 3 Md. Ch. 392. An answer that defendant has no knowledge except what is derived from the bill, without answering as to his information and belief, is insufficient; but an answer that he had no knowledge or information whatever, except from the allegations in the bill, or that he is utterly and entirely ignorant except from the information of the bill, is sufficient. Tradesmen's Bank v. Hyatt, 2 Edw. Ch. (N. Y.) 195. An answer that defendant does not know or believe a fact charged in the bill is insufficient. He is bound to answer as to his information. Robinson v. Woodgate, 3 Edw. Ch. (N. Y.) 422; Utica Ins. Co. v. Lynch, 3 Paige (N. Y.) 210. An answer, in reply to a charge of usurious acts done by defendant in person, that he has no knowledge, information, recollection, or belief concerning the charge, other than is derived from the statement in the bill, is insufficient. Sloan v. Little, 3 Paige (N. Y.) 103. The response, in an answer to a material allegation of the bill, that defendant, "having no personal knowledge thereof, leaves the said complainant to make such proof as he may be advised," is insufficient, since defendant may have information or belief of a very strong character. Ryan v. Anglesea R. Co. (N. J. Eq.) 12 Atl. 539; Reed v. Cumberland Mut. Fire Ins. Co., 36 N. J. Eq. 146.

avail the complainant unless put in issue by the bill.107 Where a fact is alleged in the bill, and admitted by the answer, the admission is conclusive, and evidence tending to dispute it should not be considered;108 but, although a defendant admits the allegations and charges in a bill, he does not thereby consent to the granting of the relief prayed.109 The technical traverse usually inserted in the concluding clause of an answer, does not constitute an admission of allegations of the bill not denied in the answer, and such allegations must be substantiated by proof.110 In most jurisdictions, nothing will be regarded as admitted by the answer unless expressly admitted,111 and a literal denial in the answer of a material allegation in the bill is not to be deemed an admission, although it might be held insufficient on exceptions.112 Generally, where there is no direct response to a material statement in the bill, and no exceptions are filed, but a replication is put in, on the hearing such statement cannot be taken as admitted, but must be proved. It need not be proved by the amount of testimony required to overcome the sworn responsive answer, but must be shown by at least a preponderance of evidence.118 In most jurisdictions, it is held that when a matter is neither admitted nor denied by an answer, it must be substantiated by proof.114

107 Hoff v. Burd, 17 N. J. Eq. 201; Jackson v. Ashton, 11 Pet. (U. S.)

229.

108 Weider v. Clark, 27 III. 251.

109 Hendrickson v. Winne, 3 How. Pr. (N. Y.) 127.

110 Litch v. Clinch, 136 Ill. 410, 26 N. E. 579.

111 Morris v. Morris, 5 Mich. 171.

112 United States v. Ferguson, 54 Fed. 28; Savage v. Benham, 17 Ala. 119; White v. Wiggins, 32 Ala. 424; Russey v. Walker, 32 Ala. 532. Positive denial of fraud, in an answer, will not avail against admissions in the same answer of facts which show that such transaction was fraudulent. Robinson v. Stewart, 10 N. Y. 189.

118 Stackpole v. Hancock, 40 Fla. 362, 24 So. 914; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 599.

114 De Wolf v. Long, 7 Ill. 679; Coleman v. Lyne's Ex'r, 4 Rand. (Va.) 454; Bank of Jamaica v. Jefferson, 92 Tenn. 537, 22 S. W. 211; Smith v. Turner (Tenn. Ch. App.) 48 S. W. 396; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 599; Young v. Grundy, 6 Cranch (U. S.)

315. Responsiveness.

116

and

Matter in an answer which is not responsive to the bill, which is impertinent, will be stricken out on exceptions.115 What is responsive to the bill is to be determined by the allegations of the bill, and not by the interrogatories. The interrogatories can neither limit nor extend the defendant's obligation to answer. An answer stating the particulars of a transaction charged and inquired into by the bill is responsive.117 Where a deed is absolute on its face, and the grantor files a bill to set it aside, the answer of the defendant setting up a trust in the grantee, unless directly responsive to the bill, is not evidence of the trust.118 An answer stating that the respondent "does not believe, and denies," the material averments of the bill, is responsive to, and an express denial of, such averments of the bill.119

51; Blakeney v. Ferguson, 14 Ark. 640; Glos v. Randolph, 133 Ill. 197, 24 N. E. 426; Bonnell v. Roane, 20 Ark. 114. "It is not true, in proceedings in chancery, that that which is not expressly denied is to be taken as admitted." De Wolf v. Long, 7 Ill. 679. In some jurisdictions it is held that material allegations of the bill not denied are admitted. Jones v. Knauss, 31 N. J. Eq. 609; Pinnell v. Boyd, 33 N. J. Eq. 190; Lee v. Stiger, 30 N. J. Eq. 610. See, also, Neale v. Hagthrop, 3 Bland (Md.) 569. Some cases hold that, if the facts are presumptively in the defendant's knowledge, failure to either admit or deny them is an admission of their truth (Clark v. Jones, 41 Ala. 349; Smilie v. Siler's Adm'r, 35 Ala. 88; Bank of Mobile v. Planters' & Merchants' Bank of Mobile, 8 Ala. 772); and that facts alleged to be in defendant's knowledge, if not denied, are to be taken as true (Mitchell v. Maupin, 3 T. B. Mon. [Ky.] 185; Mosely v. Garrett, 1 J. J. Marsh. [Ky.] 212); but that where the facts cannot be presumed to be, or are not, stated to be in defendant's knowledge, the rule that, if not admitted or denied, they are deemed to be admitted, does not obtain (Cowan v. Price, 1 Bibb [Ky.] 173; Bank of Mobile v. Planters' & Merchants' Bank of Mobile, 8 Ala. 772; Moore v. Lockett, 2 Bibb [Ky.] 69, 4 Am. Dec. 683; Thorington v. Carson, 1 Port. [Ala.] 257; Kennedy's Heirs v. Meredith, 3 Bibb [Ky.] 465).

115 Norton v. Woods, 5 Paige (N. Y.) 260.

116 McDonald v. McDonald, 16 Vt. 630. See supra, § 76.

117 Merritt v. Brown, 19 N. J. Eq. 286; Youle v. Richards. 1 N. J. Eq. 539.

118 Hutchinson v. Tindall, 3 N. J. Eq. 357.

110 Philadelphia Trust, Safe Deposit & Ins. Co. v. Scott, 45 Md. 451.