to so much of the answer as is not directly responsive to the bill.92 But an answer, although positive and directly responsive to the allegations in the bill, may be outweighed by circumstances, especially if the answer be respecting facts which, in the nature of things, cannot be within the personal knowledge of the defendant.93 And a positive denial of fraud in an answer will not prevail against admissions, in the same pleading, of facts which show that the transaction was fraudulent, or from which fraud might be inferred." Where the answer admits facts fraudulent per se in judgment of law,5 or from which fraud follows as a natural and legal if not a necessary and unavoidable conclusion," a general denial of fraud is unavailing. The complainant is entitled to the benefit of any admissions in the answer tending to establish fraud, although in the face of the general denial. They stand as admissions of record, whether the answer be under oath or not." Failure to deny a material allegation amounts to an admission and no proof is required."

153, 3 L. Ed. 688; Wilcoxson v. Darr, 139 Mo. 660, 41 S. W. 227.

94. Robinson v. Stewart, 10 N. Y. 189; Litchfield v. Pelton, 6 Barb. (N. Y.) 187; Stephenson v. Felton, 106 N. C. 114, 11 S. E. 255.

95. Cunningham v. Freeborn, 11 Wend. (N. Y.) 240.

96. Sayre v. Fredericks, 16 N. J. Eq. 205.

97. Ala.-Battle v. Reid, 68 Ala. 149.

Ill.-Miller v. Payne, 4 Ill. App.

112.

Ky. Terrill v. Jennings, 58 Ky. 450.

N. J.-Levi v. Welsh, 45 N. J. Eq. 867, 19 Atl. 620.

Tenn.-Yost v. Hudiberg, 70 Tenn.

627.

98. Clark v. Olsen (Cal. 1893), 33 Pac. 274; Redhead v. Pratt, 72 Iowa, 99, 33 N. W. 382.

99

§ 28. Replication.-No replication or reply is required where the answer amounts to no more than a denial of plaintiff's allegations. If the complainant intends to deny the truth of defendant's answer, it is his duty to do so by filing a replication which will put the cause at issue, and then defendant has the right to make out his defense by evidence.1 But the cause may be set down for hearing by the complainant on bill and answer, which amounts to a demurrer to the answer, and then no testimony is taken on either side. Where the cause is submitted for final decree on bill, answer, exhibits, and depositions, the filing of a replication will be considered as waived. Allegations not responsive to the bill, if denied by a general replication, must be proved before becoming available to the party making them.*

29. Bills of particulars.-Applications for bills of particulars are addressed wholly to the discretion of the court, and whether the application shall be granted or denied depends on the particular circumstances of each case.5 Although neither party will be required to disclose the evidence by which he intends to establish his cause of action or defense at the trial, it has been held that the plaintiff may be compelled to furnish a bill of particulars stating what property was fraudulently conveyed or incumbered, and in what way, and of the time and place of the acts or things which he intends to prove as showing the fraudulent intent, at least where it is uncontradicted that the defendants have no knowledge of such facts other than communicated by rumor, and are likely to be surprised at the trial, unless informed by a bill of particulars thereof." And where the defendant sets

6

99. Jordan v. Buschmeyer, 97 Mo. 94, 10 S. W. 616.

1. Birdsall v. Welch, 6 D. C. 316; Higby v. Ayres, 14 Kan. 331.

2. Birdsall v. Welch, supra. 3. Demaree v. Driskill, 3 Blackf. (Ind.) 115.

4. Humes v. Scruggs, 94 U. S. 22, 24 L. Ed. 51.

5. Passavant v. Cantor, 21 Abb. N. C. (N. Y.) 259, 1 N. Y. Supp. 574.

6. Harding v. Bunnell, 14 Pa. Co. Ct. 417.

7. Claflin v. Smith, 13 Abb. N. C. (N. Y.) 205, 66 How. Pr. (N. Y.) 168, 4 Civ. Proc. Rep. 240.

up an affirmative defense, he also may be required to furnish a bill of particulars so as to prevent surprise at the trial. But a bill of particulars of the fraudulent acts relied on to prove fraudulent intent will not be granted when it appears that all the means of knowledge as to all the facts and circumstances with respect to such acts, and the disposition of the property, are peculiarly within reach of the party demanding the particulars. And a bill of particulars will not be ordered as to merely collateral facts, averred argumentatively, or by way of evidence, in support of preceding denials of particular allegations, and which the party alleging them would not be permitted to prove in his own behalf.10

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30. Venue. An action to set aside a fraudulent assignment or conveyance of real estate is a local action and must be brought and tried in the county in which the real estate or some portion of it is situated. Where an action affects an estate in real property it is essential that the property be within the territorial jurisdiction of the court." A stipulation by the plaintiff in resisting a motion to change the place of trial to such county, that he will not attempt to reach the real estate or make any claim of title or interest therein or thereto, does not change the character of the action, or afford ground for a denial of such motion." The Illinois statute requiring suits affecting land to be brought in the county where the land lies is only declaratory, and does not preclude the bringing of a suit to set aside a fraudulent conveyance in the county where the defendant is found. A court of equity having jurisdiction of the person of the fraudu

8. Gilhooly v. American Surety Co., 87 Hun (N. Y.), 395, 34 N. Y. Supp. 347; Byrnes v. Lewis, 83 Hun (N. Y.), 310, 31 N. Y. Supp. 1028.

9. Fink v. Jetter, 38 Hun (N. Y.), 163; Faxon v. Bail, 21 N. Y. Supp. 737; Passavant v. Cantor, supra. 10. Byrnes v. Lewis, supra.

11. Acker v. Leland, 96 N. Y. 383; Wyatt v. Brooks, 42 Hun (N. Y.), 502; Moss v. Gilbert, 18 Abb. N. C. 202.

12. Wyatt v. Brooks, supra; Sweetser v. Smith, 5 N. Y. Supp. 373, 22 Abb. N. C. (N. Y.) 319.

lent grantee may compel him convey property situated in a foreign jurisdiction. In such a case the decree operates on the person of the defendant and does not directly affect the property itself.13

14

§ 31. Issues, proof, and variance generally.-As a general rule the proofs should be addressed to the issues made by the pleadings, and evidence of material facts not pleaded is always properly excluded.15 Where a debtor's transfer of property is alleged by an attacking creditor to have been fraudulent, the debtor's intent is a material issue.16 But where a bill to set aside a fraudulent conveyance proceeds solely on the ground of the debtor's insolvency, making no charge as to any actual fraudulent intent, no question of such an intent apart from alleged insolvency, arises." If it is alleged that the grantee had knowledge of the grantor's insolvency and fraudulent intent, evidence to prove such facts is admissible, but not otherwise.18 Where the defendant fails to allege in his answer fraud or fraudulent intent affecting plaintiff's title, he will not be permitted to prove it.19 Where the only issue made by the pleadings is want of consideration for the conveyance, evidence is not admissible to show inadequacy of consideration.2 Under an averment in general terms of an intent on the grantor's part to hinder, delay, and defraud his creditors, evidence of fraud is not admissible,

13. Johnson v. Gibson, 116 Ill. 294, 6 N. E. 205.

14. Meyer-Marx Co. v. Masters, 119 Ala. 186, 24 So. 506; Farmers' Bank v. Worthington, 145 Mo. 91, 46 S. W. 745; Morgan v. Taylor (Tenn. Ch. App. 1897), 42 S. W. 178.

15. Noble v. Gilliam, 136 Ala. 618, 33 So. 861; Minzesheimer v. Doolittle, 56 N. J. Eq. 206, 39 Atl. 386.

16. Beuerlein v. O'Leary, 149 N. Y. 33, 43 N. E. 417; Garahy v. Bayley, 25 Tex. 294.

17. Cleveland v. Chambliss, 64 Ga.

20

352; Johnston v. Standard Shoe Co., 5 Tex. Civ. App. 398, 24 S. W. 580, but evidence relating to the financial condition of the alleged fraudulent grantor is admissible.

18. Levyson v. Ward, 24 La. Ann. 158; Garesche v. McDonald, 103 Mo. 1, 15 S. W. 379.

19. Golden State, etc., Iron Works v. Angell, 89 Cal. 643, 27 Pac. 65; Powers v. Patten, 71 Me. 583.

20. Harper v. Trent (Tenn. Ch. App. 1899), 53 S. W. 245; Millhiser v. McKinley, 98 Va. 207, 35 S. E. 446.

as there is no allegation that the grantee knew of or participated in the debtor's fraudulent intent.2 Whenever a disposition of property has been made which is alleged to be fraudulent as to creditors, the demand of the creditor or the actual indebtedness is not only in issue, but it is the primary fact in logical order for the party attacking the conveyance to establish, in order to determine that he has a right, as such creditor, to question the validity of the conveyance.22 It is also important in its bearing upon the probable intent of the parties to the transfer, and the bona fides of the transaction cannot be properly tried without going into this subject.23 The value of property included in a conveyance alleged to be fraudulent is a material subject of inquiry on the question of fraud.24 Where a creditor claims the property as purchaser at a judicial sale the validity of his title is in issue.25

§ 32. Under a general denial.-In some jurisdictions it is the rule that in an action of replevin or trover against a sheriff or other officer who has seized property under an execution or writ of attachment, the defendant cannot show under a general denial that the transfer to the plaintiff was fraudulent as to creditors, but the facts constituting the alleged fraud must be specially pleaded." The defense, however, is available if he pleads the

21. Meeker v. Harris, 19 Cal. 278, 79 Am. Dec. 215; Seeleman v. Hoagland, 19 Colo. 231, 34 Pac. 995.

22. Miller v. Miller, 23 Me. 22, 39 Am. Dec. 597; Inman v. Mead, 97 Mass. 310; Cook v. Hopper, 23 Mich. 511.

23. Cook v. Hopper, 23 Mich. 511. 24. Weadock v. Kennedy, 80 Wis. 449, 50 N. W. 393; Murray v. Shoud, 13 Wash. 33, 42 Pac. 631.

25. Hiney v. Thomas, 36 Mo. 377; Tisch v. Utz, 142 Pa. St. 186, 21 Atl. 808.

26. N. Y.-Van Dewater v. Gear,