information and belief, that facts set out in his pleading are not within his personal knowledge, the pleading is not entitled, with respect to the facts in question, to the weight usually accorded

fore as to facts responsive to the bill, which are distinctly asserted by the defendant, and not disproved by the complainant, he is concluded."

297 Alabama.-Pearce v. Nix (1859) 34 Ala. 183.

Arkansas.-See

Byrd v. Belding (1856) 18 Ark. 118; Spence v. Dodd (1857) 19 Ark. 166; Fairhurst v. Lewis (1861) 23 Ark. 435; Barclay v. Dawson (1871) 26 Ark. 417.

Delaware.-Robinson V. Jefferson (1823) 1 Del. Ch. 244; Lattomus v. Garman (1869) 3 Del. Ch. 232.

Florida.-Mayo v. Hughes (1906) 51 Fla. 495, 40 So. 499; Pittman v. Milton (1915) 69 Fla. 304, 68 So. 658.

Georgia.-Rogers v. French (1856) 19 Ga. 316; Arline v. Miller (1857) 22 Ga. 330; Fletcher v. Faust (1857) 22 Ga. 559; Heard v. Nix (1895) 96 Ga. 51, 23 S. E. 122; Toomer v. Warren (1905) 123 Ga. 477, 51 S. E. 393. Hawaii.-Wond v. Mikalemi (1912) 21 Haw. 288.

v.

Illinois.-Fryrear Lawrence (1848) 10 Ill. 325; Cunningham v. Ferry (1874) 74 Ill. 426; Deimel v. Brown (1891) 136 Ill. 586, 27 N. E. 44, affirming (1890) 35 Ill. App. 303.

Indiana. State v. Holloway (1846) 8 Blackf. 45.

Kentucky.-Laurence v. Laurence (1816) 4 Bibb. 357; Carneal v. Day (1821) Litt. Sel. Cas. 492; Mitchell v. Maupin (1826) 3 T. B. Mon. 185; Whittington v. Roberts (1826) 4 T. B. Mon. 173; Young v. Hopkins (1827) 6 T. B. Mon. 19; Harlan v. Wingate (1829) 2 J. J. Marsh. 138; Taylor v. Morton (1830) 5 J. J. Marsh. 65; Combs v. Boswell (1833) 1 Dana, 473; Williamson v. McConnell (1836) 4 Dana, 454; Price v. Boswell (1842) 3 B. Mon. 13. Louisiana. Franklin V. Kemball (1818) 5 Mart. 666.

Maryland.-Drury v. Conner (1823) 6 Harr. & J. 288.

Mississippi. - Toulme V. Clark (1886) 64 Miss. 471, 1 So. 624; Purvis v. Woodward (1901) 78 Miss. 922, 29 So. 917.

New Hampshire.-Bellows v. Stone (1846) 18 N. H. 465.

New Jersey.-Kinna v. Smith (1834) 3 N. J. Eq. 14; Stevens v. Post (1858) 12 N. J. Eq. 408; Brown v. Bulkley (1862) 14 N. J. Eq. 294; Bent v. Smith

to pleadings as evidence.297 And, in a few of these cases, it is even said that such pleadings do not constitute evidence at all. But this seems nothing more than a different method of stating (1869) 20 N. J. Eq. 199 (obiter); Lawrence v. Lawrence (1871) 21 N. J. Eq. 317; Sweet v. Parker (1871) 22 N. J. Eq. 453; Stearns v. Stearns (1872) 23 N. J. Eq. 167 (obiter); Clawson v. Riley (1881) 34 N. J. Eq. 348; Frink v. Adams (1883) 36 N. J. Eq. 485 (obiter) affirmed in (1884) 38 N. J. Eq. 287; Corporation for Relief v. Eden (1901) 62 N. J. Eq. 542, 50 Atl. 606.

New York.-Knickerbocker v. Harris (1828) 1 Paige, 209, reversed on another point in (1830) 5 Wend. 638; Town v. Needham (1832) 3 Paige, 545, 24 Am. Dec. 246. Pennsylvania.

Spencer's Appeal (1876) 80 Pa. 317; Bougher v. Conn (1885) 17 Phila. 81, affirmed without opinion (1887) 6 Sadler (Pa.) 100, 8 Atl. 838; Socher's Appeal (1884) 104 Pa. 609; Riegel v. American L. Ins. Co. (1893) 153 Pa. 134, 19 L.R.A. 166, 25 Atl. 1070; Bussier v. Weekey (1899) 11 Pa. Super. Ct. 463; Petry v. Clark (1903) 12 Pa. Dist. R. 249; Alcania Co. v. Avonmore Land & Improv. Co. (1914) 23 Pa. Dist. R. 990; Cornwell v. Sparks (1915) 248 Pa. 109, 93 Atl. 868.

Rhode Island.-Atlantic F. & M. Ins. Co. v. Wilson (1858) 5 R. I. 479.

Tennessee.-McLard V. Linnville (1849) 10 Humph. 163; Wilkins v. May (1859) 3 Head. 173; McKissick v. Martin (1873) 12 Heisk. 311.

Vermont.-Sanborn V. Kittredge (1847) 20 Vt. 632, 50 Am. Dec. 58; Loomis v. Fay (1852) 24 Vt. 240; Wooley v. Chamberlain (1852) 24 Vt. 270; Veile v. Blodgett (1877) 49 Vt. 270.

Virginia. Frank v. Lilienfeld (1880) 33 Gratt. 377; Jones v. Abraham (1881) 75 Va. 466; Chapman v. Chapman (1895) 91 Va. 397, 50 Am. St. Rep. 846, 21 S. E. 813.

Wisconsin.-Gear v. Parish (1842) Burnett, 99; Remington v. Willard (1862) 15 Wis. 583.

United States.-Dutilh v. Coursault (1837) 5 Cranch, C. C. 349, Fed. Cas. No. 4,206; Tobey v. Leonard (1861) 2 Cliff. 40, Fed. Cas. No. 14,067; Badger v. Badger (1862) 2 Cliff. 137, Fed. Cas. No. 718, affirmed in (1864) 2 Wall. 87, 17 L. ed. 836; Robinson v. Mandell (1868) 3 Cliff. 169, Fed. Cas. No. 11,959; Hayward v. Eliot Nat. Bank

the same thing, the result being the same in both cases, the difference in statement growing apparently out of carelessness, rather than any conscious intent, the meaning in both instances

(1874) 4 Cliff. 294, Fed. Cas. No. 6,273, affirmed in (1878) 96 U. S. 611, 24 L. ed. 855; Berry v. Sawyer (1882) 19 Fed. 286; Holladay Case (1886) 27 Fed. 830; Blair v. Silver Peak Mines (1899) 93 Fed. 332, denying rehearing (1898) 84 Fed. 737; Earle v. Art Library Pub. Co. (1899) 95 Fed. 544; Hanchett v. Blair (1900) 41 C. C. A. 76, 100 Fed. 817; Cady v. Barnes (1913) 208 Fed. 361; Slater v. Maxwell (1868) 6 Wall. 268, 18 L. ed. 796.

England.-Arnot v. Biscoe (1743) 1 Ves. Sr. 97, 27 Eng. Reprint, 914, 18 Eng. Rul. Cas. 156; Le Neve v. Le Neve (1747) 1 Ves. Sr. 66, 27 Eng. Reprint, 893.

It is said obiter in Waters v. Creagh (1830) 4 Stew. & P. (Ala.) 410, that the rule requiring two witnesses to disprove a denial in an answer does not apply, where the defendant refers to facts not within his knowledge, unless he gives satisfactory reasons for having such knowledge of the facts denied as to justify him in making such denial.

In Biscoe v. Coulter (1857) 18 Ark. 423, it is said that an answer, responsive to an allegation of the bill, but of matter not within the peculiar knowledge of the defendants, "will be treated as merely putting the allegation in issue."

Upon motion to set aside a preliminary injunction, it is held in Luburg's Appeal (1889) 1 Monaghan (Pa.) 329, 17 Atl. 245, that averments in the answer, "from information received," and not based upon the knowledge of the defendant, are not evidence.

And so, in a suit by the assignee of a mortgage for foreclosure, defendant's denial of "any knowledge of the assignment of said note and mortgage" is not such a denial as to put complainant upon proof. Brown v. Woodbury (1854) 5 Ind. 254.

In Gibbs v. Frost (1843) 4 Ala. 720, it is held that, where the bill does not charge defendant with knowledge of certain facts, and where defendant admits, in his answer, that he knows nothing thereof except by the information of his counsel, his denial with respect thereto will not subject the complainant to the necessity of estab1 A.L.R.-9.

being that pleadings of that kind do not constitute evidence, within the ordinary rules with respect to weight. This rule with respect to facts not within the pleader's knowledge finds frelishing the allegations of the bill with regard thereto, by the testimony of two witnesses.

It is held in Paulding v. Watson (1852) 21 Ala. 279, that an answer, denying personal knowledge of a portion of the facts alleged in the bill, amounts only to a formal denial of the allegations of the bill upon that subject; and the complainant is put thereby merely to the necessity of making ordinary proof.

In Clark v. Van Riemsdyk (1815) 9 Cranch (U. S.) 153, 3 L. ed. 688, an action on a bill of exchange drawn by the supercargo of a vessel owned by defendant's testator, it is said: "The weight of an answer must also, from the nature of evidence, depend, in some degree, on the fact stated. If a defendant asserts a fact which is not and cannot be within his own knowledge, the nature of his testimony cannot be charged by the positiveness of his assertion. The strength of his belief may have betrayed him into a mode of expression of which he was not fully apprised. When he intended to utter only a strong conviction of the existence of a particular fact, or what he deemed an infallible deduction from facts which were known to him, he may assert that belief, or that deduction, in terms which convey the idea of his knowing the fact itself. Thus, when the executors say that John Innis Clark [testator] never gave Benjamin Munro [supercargo] authority to take up money or to draw bills, when they assert that Riemsdyk, who was in Batavia, did not take this bill on the credit of the owners of the Patterson, but on the sole credit of Benjamin Munro, they assert facts which cannot be within their own knowledge. In the first instance, they speak from belief; in the last, they swear to a deduction which they make from the admitted fact that Munro could show no written authority. These traits in the character of testimony must be perceived by the court, and must be allowed their due weight, whether the evidence be given in the form of an answer or a deposition."

In Buckingham v. McLean (1851) 13 How. (U. S.) 151, 14 L. ed. 91, fol

the bill, it puts the complainant on proof, and leaves him to sustain them as he can, unembarrassed by any supposed responsive features of the answer."

And the preceding case is cited and followed in Dugan v. Gittings (1845) 3 Gill (Md.) 138, 43 Am. Dec. 306.

And it is said by the chancellor in Hagthorp v. Hook (1829) 1 Gill & J. (Md.) 270, that "where an administrator is called upon to answer certain matters, which appear to have rested exclusively within the knowledge of his intestate, it will be sufficient that he swears as he is informed and believes; . but such an answer is to be taken with reference to the reasons given for his belief; for, if the reasons are futile, and especially, if the alleged belief be, in a high degree, irreconcilable with the admitted or established circumstances of the case, the answer cannot be credited; nor be allowed thus loosely to swear away the equity of the bill."

Where, in Ormsby v. Ansom (1842) 21 Me. 23, it is contended that an answer by the administratrix of a trustee in attachment is not sufficient to entitle the estate of the trustee to a discharge, because such answer is made only to the best of the pleader's knowledge, the contention is overruled, it being said that such answer "might not be satisfactory if the answer had come from one having certain knowledge of the business; but it cannot be expected that the administratrix should be possessed of the same degree of knowledge, and this appears to be the best evidence which can be obtained."

So, where, in Barclay v. Dawson (1871) 26 Ark. 417, the defendant is an administrator, it is held that one witness is sufficient to overcome the averments of his answer, "for, as administrator, in which capacity he was sued, the material facts stated in his answer could not be supposed to be within his knowledge."

It is held in Garrow v. Carpenter (1834) 1 Port. (Ala.) 359, that the answer of a defendant in chancery, formally denying that which he is not alleged to know, and which, from his situation, he cannot know with certainty, is not so conclusive as to require two witnesses to overcome it. "Is it not reasonable that the answer of such a one should be less weighty in the balances of justice than the positive asseverations of a disinter

ested witness?" the court asks. In this case, the defendant's lack of knowledge was due to the fact that he was acting in the capacity of administrator.

In Lawrence v. Lawrence (1871) 21 N. J. Eq. 317, involving an answer by the legatees and executors of a decedent, it is held that "the denial in the answer has not the effect of evidence because, although responsive to the bill, none of the facts are within the personal knowledge of any of the defendants."

And where a testator dies pending a suit against him, and his administrator is made a party and files a formal answer, putting the allegations of the bill in issue, the complainant is not compelled thereby to sustain the allegations of his bill by the proof of two witnesses. Reynolds v. Pharr (1846) 9 Ala. 560.

It is said in McCullough v. Barr (1891) 145 Pa, 459, 22 Atl. 962, that "it is not the rule in equity, any more than in law, that a plain acknowledgment in writing, by a decedent, of an existing debt, will be overcome by an answer of his executor, 'to the best of his knowledge and belief,' that no such debt was owing."

In holding, in McAllister v. Clopton (1875) 51 Miss. 257, that an answer by an administrator, disclaiming knowledge and demanding strict proof, does not amount to a denial of the facts, it is said: "The general rule is, if the facts are stated to be on the defendant's personal knowledge, he must answer positively, and not to his remembrance and belief, unless they occurred several years before. As to facts which have not happened within his own knowledge, he must answer as to his information and belief, and not as to his information only."

In Andrews v. Hyde (1872) 3 Cliff. 516, Fed. Cas. No. 377, involving the answer of administrators and heirs of a decedent, it is said: "Administrators and heirs cannot be supposed, in such a case, to have personal knowledge upon the subject, but the decision of the Supreme Court warrants the conclusion that, in such a case, the complainant, is not entitled to decree, upon the uncorroborated testimony of a single witness; certainly not, unless his statements are positive, and the witness appears to be without bias, prejudice, or interest adverse to the respondent."

heirs,299 where they are without personal knowledge of the transactions of the decedent. For a time, it was the rule, in Mississippi, that the court would look no further than the positive averment or denial in a pleading, regardless of the extent of the pleader's personal knowledge of the facts;300 but the court

And see Tong v. Oliver (1803) 1 Bland, Ch. (Md.) 198, note.

299 In a bill filed to avoid a deed, on the ground that it was never delivered to the grantee, but was fraudulently taken from his possession, the answer of the grantee's heirs, who have no personal knowledge of the facts and who can answer only upon information and belief, is not evidence in their behalf. Benson v. Woolverton (1862) 15 N. J. Eq. 158.

Andrews v. Hyde (Fed.) supra.

subsequently overruled itself, and got in line with the other states.301 In applying this rule with respect to matter not in the pleader's knowledge, a distinction is to be made in the case of a fact of which the pleader must have had personal knowledge, had it existed, but of which he denies all knowledge or recollection.302 Such a

one witness to overthrow an answer denying allegations of the bill, applies only when the denial is positive, and does not apply where the denial is as to belief, or is as matter of inference or argument. It is true that, when the answer positively denies, the court will not inquire into the grounds of the denial, as held in M'Gehee vWhite (Miss.) supra, but the rule as stated above remains."

300 In M'Gehee v. White (1856) 31 Miss. 41, defendant, who admits in his answer that he never had any conversation with his daughter with respect to her aceeptance of a deed delivered by him to her husband, for her account, denies that she ever accepted such deed. The court says: "This denial is not by way of inference or argument, but it is a direct and unequivocal response to the allegation of the bill. Under the view in which we are now considering the matter, it is immaterial whether the defendant was justified, by the facts of the case, in his denial. He may have made the denial upon information which he had received, or from a state of facts which he knew to exist, which satisfied his mind of the correctness of what he stated. Whether the evidence upon which he founded his answer was sufficient to justify it, or whether he had any evidence at all to support it, is not the question. He was called upon to answer a specific and material charge, upon his oath, and he responded to the call by a positive denial, and, whether true or false, it must have the force of evidence in the cause. It cannot be said that an answer which is a direct and positive denial of a charge in a bill shall not have its legal effect as evidence, because it is made upon insufficient grounds."

So, it is said in Toulme v. Clarke (1886) 64 Miss. 471, 1 So. 624, that "the rule of courts of chancery, which requires more than the testimony of

And see Carpenter v. Edwards (1887) 64 Miss. 595, 1 So. 764.

301 M'Gehee v. White (Miss.) supra, is specifically overruled in Shackelford v. Brown (1894) 72 Miss. 380, 17 So. 896, where it is said that that decision "converts what is a rule of evidence into one of pleading, and its effect is, or may be, to obstruct the search for truth, or to prevent effect being given to the truth, when discovered."

302 In Marvel v. Fralinger (1903) 65 N. J. Eq. 161, 55 Atl. 818, reversed on another point in (1904) 67 N. J. Eq. 622, 63 Atl. 166, involving an answer "to the best of the knowledge and belief" of the defendants, it is said: "The phraseology used by the affiants, it is contended, deprive their answers of the force which they would have had, had they positively sworn that the explanatory agreement was never executed. It is insisted that the answers have no greater force than if they were sworn to on information and belief. The strength of the affidavit sworn to in this language must depend upon the fact which is the subject of the affidavit. Where the fact is one concerning which the affiant may have had no knowledge, the affidavit amounts to no more than one made upon belief only. Where, however, as in this case, the fact is one concerning the affiant's personal act, of which he must have had knowledge, had it existed, the affidavit is an assertion, under oath, that the affiant, using his best recollection, is unable to recall such an occurrence."

And where, in Harris v. Knicker