Accordingly, a student of the common law, if he wished to inform himself thoroughly as to the scope of the general issue, would have to study the practice prior to the adoption of the Hilary Rules, when its scope was increasingly large, and its narrower scope after the Hilary Rules. It would also be necessary for him to study the general issue in the various states until the legislatures abolished it, as they have in most states; since the states did not uniformly follow either the earlier or the later English practice.

Since, however, the general issue has been abolished in most states, and superseded by the general denial, which puts in issue all the material allegations in the declaration, and only those allegations, it is more important for the student to study the scope of the general denial than it is for him to study the scope of the old general issue. Nevertheless, some acquaintance with the older learning is necessary to enable the student to understand the procedural aspects of the older cases, both English and American, which are important in the study of the substantive law, and also to make possible an understanding comprehension of the modern system of pleading by way of traverse by general denial.

The general issue in each of the various forms of action heretofore considered is as follows:

In trespass, the general issue is not guilty. Prior to the Hilary Rules, this plea allowed the defendant to prove that he did not commit the trespass complained of, and also, in the case of trespass quare clausum fregit or de bonis asportatis, that the plaintiff did not have possession or a right to possession of the land or chattels involved. After the Hilary Rules, however, the plea in every case denied only the commission of the trespass by the plaintiff. Both before and after the Rules, matter in justification or excuse (e.g., selfdefense, license or consent, authority of law) or matter in discharge (e.g., release, accord and satisfaction) was required to be pleaded specially.

In case, the general issue is also not guilty. Before the Hilary Rules, this plea had a very broad effect. Not only did it deny all the allegations of the declaration, but it permitted the defendant to prove almost any matter in justification or excuse or by way of discharge. However, the Statute of Limitations was required to be pleaded specially, as was the defense of truth in an action of libel or slander. After the Rules, the plea operated "as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant". Thus, in an action on the case for obstructing

See 1 Chitty, Pleading (5th ed. 1831) 538-546.

2 See Stephen, Pleading (Williston ed. 1895) *lix.

3 See 1 Chitty, Pleading (5th ed. 1831) 527-536.

4 Quoted from the Rules as given in Stephen, Pleading (Williston ed. 1895) *lviii.

a right of way, the general issue would deny the obstruction only, and not the plaintiff's right of way. Under the Rules, moreover, matters in justification or excuse or by way of discharge were required to be specially pleaded.

The general issue in trover, again, is not guilty. Before the Hilary Rules it had substantially the same breadth as the similar plea in case. The only matter in defense required to be pleaded specially was the Statute of Limitations.1 After the Rules, the plea denied the conversion only, and not the plaintiff's title or right to possession of the goods; and any new matter was required to be specially pleaded.

2

In replevin the general issue is non cepit. This plea, the effect of which was not changed by the Hilary Rules, denied the taking of the goods at the place mentioned in the declaration. Where the defendant wished to justify the taking, he was required to avow or make cognizance.*

In detinue, the general issue is non detinet. Prior to the Hilary Rules, it denied the plaintiff's title or right to possession of the chattel as well as the fact of detention by the defendant, but all other defenses were required to be pleaded specially.5 After the Rules, all that the plea put in issue was the detention."

In debt, the general issue differs depending on the character of the plaintiff's cause of action." (1) In debt on simple contract prior to the Hilary Rules, the plea was nil debet. This denied the existence of the debt at the time of the suit, and hence any matter could be given in evidence under the plea which showed that nothing was due the plaintiff, including such defenses as payment, release, or other matter in discharge. The plea of nil debet was abolished by the Hilary Rules, which, however, allowed a plea of "never indebted" in actions of debt on simple contract other than on bills of exchange and promissory notes, which had the effect of denying the matters of fact from which the debt was alleged to arise. All defenses to actions on bills and notes, and all matters by way of discharge (e.g., payment, release) or those showing the transactions to be void or voidable (e.g., illegality, infancy, coverture) in all cases, were required to be specially pleaded. (2) In debt on a specialty, the plea of non est factur is sometimes called the general issue. This plea denied that the defendant executed the sealed instrument sued on, and

5 See 1 Chitty, Pleading (5th ed. 1831) 525.

6 See Stephen, Pleading (Williston ed. 1895) *lviii.

8

See 1 Chitty, Pleading (5th ed. 1831) 516-522; Stephen, Pleading (Williston ed. 1895) *lviii.

8 Strictly speaking, this was not a "general" issue. See the discussion of the similar plea in covenant, infra.

also permitted proof that the instrument was void at common law, but did not allow the defendant to show that it was voidable or illegal, or that the obligation had been performed or discharged. Under the Hilary Rules, the plea denied only the execution of the instrument, and all other matters including those making it void were required to be pleaded specially. (3) In debt on a record, the general issue, unchanged by the Hilary Rules, is nul tiel record. This plea puts in issue only the existence of the judgment sued on; all other defenses must be pleaded specially. (4) In debt on a statute, the usual general issue was nil debet prior to the Hilary Rules; thereafter the plea of "never indebted" was available here as in the case of debt on simple contract already referred to.

Strictly speaking, there is no general issue in covenant. The plea of non est factum, sometimes spoken of as the general issue in this form of action, before the Hilary Rules put in issue only the making of the sealed instrument and whether or not it was void at common law. It was the same in effect as the similar plea in debt on a specialty, and was similarly dealt with by the Rules.

The general issue in assumpsit, special or general, is non assumpsit. Prior to the Hilary Rules, this was a very broad plea. The defendant might of course show in special assumpsit that no contract was in fact made, or in general assumpsit that the facts relied upon as creating an “implied" promise did not exist; but he might also show almost any other defense, e.g., infancy, coverture at the time of making the contract, duress, illegality, performance, release, accord and satisfaction. There were a few matters of defense which were required to be pleaded specially (e.g., the defendant's discharge in bankruptcy); but Chitty's remarks as to the breadth of the plea seem quite justified: ". . . it is singular that under the general issue, which in terms denies a valid contract, the defendant should be permitted to avail himself of a ground of defense which admits a valid contract, but insists that it has been performed, or that there is an excuse for the non-performance of it, or that it has been discharged." One of the main objects of the Hilary Rules was the elimination of this illogically broad plea, which did practically nothing to inform the plaintiff in assumpsit of the defenses he would be met with at the trial. The Rules provided that non assumpsit should "operate only as a denial in fact, of the express contract or promise alleged, or of the matters of fact from which the contract or promise

1 In some special cases, "not guilty" was a proper plea.

2 This rule represents the end of a considerable historical development Originally, matters of discharge were required to be specially pleaded. But this rule was relaxed as to general assumpsit and evidence of such defences was admitted under the general issue, and eventually the same rule came to be applied in special assumpsit.

31 Chitty, Pleading (5th ed. 1831) 513. As to non assumpsit generally before the Hilary Rules, see id. 510-516.

alleged may be implied by law". The plea ceased to allow proof that the alleged contract was void or voidable, or had been performed, or that the defendant was excused from performing, or that his obligation had been discharged. All these defenses had to be pleaded specially. Moreover, the plea of non assumpsit was prohibited in actions on bills of exchange and promissory notes, so that there was after 1834 no general issue in such actions, whether brought in debt or in assumpsit.2

6

For

Finally, the general issue in ejectment was not guilty. Under the elaborate fictional procedure in this action before 1852, the defendant upon appearing and entering into the "consent rule" was required to plead this plea, which under the terms of the rule appeared to deny only the right of entry of the nominal plaintiff's lessor, i.e., his title, or his right to possession in cases where he was actually ousted by the defendant. However, the plea also put in issue the defendant's possession of the land. No changes in this procedure or in the effect of this plea were made by the Hilary Rules." The form of the general issue in any form of action is simple. example, in an action of trespass, a defendant who pleads the general issue says (omitting the formal parts of his plea): "And the defendant, by his attorney, says, that he is not guilty of the said. trespasses, above laid to his charge, or any part thereof, in manner and form as the plaintiff hath above complained. And of this the defendant puts himself upon the country." The general issue in an action of assumpsit reads (again omitting the formal parts): "And the defendant, by his attorney, says, that he did not promise in manner and form as the plaintiff hath above complained. And of this the defendant puts himself upon the country."

The form of general denial under modern statutes and rules of court is even more simple. The defendant may simply say that he "denies each and every allegation in the said complaint contained." In some states, he is required, if denying on information and belief or for want of sufficient information to form a belief, to state that such is the fact.

1 Stephen, Pleading (Williston ed. 1895) *lvi.

2 There never was a general issue in the action of account. See 1 Chitty, Pleading (5th ed. 1831) 524.

3 See p. 133, supra.

4 Except that the court might give special leave to the defendant to plead to the jurisdiction.

5 See pp. 136-137, supra.

6 See Stevens v. Griffith, 3 Vt. 448, 455 (1831). But see p. 137, n. 2, supra. See Adams, Ejectment (Am. ed. 1845) *270-*272.

8 For forms of the general issue in other forms of action before the Hilary Rules, see 3 Chitty, Pleading (5th ed. 1831) 951, 952, 954, 1001, 1023, 1030, 1042, 1141. For the forms after the Hilary Rules, see Stephen, Pleading (Williston ed. 1895) *171-*173.

NEW YORK CIVIL PRACTICE ACT (1921).

§ 261. Contents of answer. The answer of the defendant must

contain:

1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.

2. A statement of any new matter constituting a defense or counterclaim.1

MASSACHUSETTS GENERAL LAWS (Ter. ed. 1932) c. 231.2

§ 25. The answer shall deny in clear and precise terms every substantive fact intended to be denied in each count of the declaration separately, or it shall declare the defendant's ignorance of the fact, so that he can neither admit nor deny but leaves the plaintiff to prove it.3

§ 28. An answer shall state clearly and precisely each substantive fact intended to be relied upon in avoidance of the action, and if it sets up the statute of limitations, the statute of frauds or any other legal bar, the defendant shall have the benefit of such defence although the answer does not deny the facts set forth in the declaration.

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 8. GENERAL RULES FOR PLEADING.

(b) Defenses; Form of Denials. A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as

1 As to counterclaims, see pp. 274-276, infra.

2 The sections here given were first enacted in substance in 1851.

3 A denial of "each and every allegation" of the declaration is sufficient under this section. See Boston Relief & Submarine Co. v. Burnett, 1 Allen 410 (Mass. 1861); Davis v. Travis, 98 Mass. 222 (1867); Amsinck v. American Ins. Co., 129 Mass. 185 (1880).