100 Mass. 216 | Mass. | 1868
This case presents a nice question of pleading The declaration follows the forms annexed to the practice act, and alleges with substantial precision and certainty the making of the note declared on and its indorsement to the plaintiff. The answer simply denies that the plaintiff is the holder of the note. The further denial that the defendant owes the plaintiff
The practice act, after abolishing the general issue in personal actions, provides that “ the answer shall deny in clear and precise terms every substantive fact intended to be denied, in each count of the declaration separately, or shall declare the defendant’s ignorance so that he can neither admit nor deny, but leaves the plaintiff to prove the same; ” and that “ any substantive fact alleged with substantial precision and certainty, and not denied in clear and precise terms, shall be deemed to be admitted.” Gen. Sts. c. 129, §§ 17, 27. A mere denial of the plaintiff’s general conclusion of law or of fact, or of the leading averment in the declaration, is not sufficient to prevent the defendant’s being held to have admitted other specific allegations. Van Buren v. Swan, 4 Allen, 380. Thus, in an action upon a promissory note, alleged in the declaration to have been destroyed, an answer putting in issue the making of the note, and not distinctly denying its destruction, has been held, upon proof of the making of the note, to admit that it has been destroyed. Boston Lead Co. v. Mc Guirk, 15 Gray, 87.
If the defendant had denied that the note had been made and indorsed as alleged, or had declared his ignorance so that he