Field, J. concurring.
t Bill filed by the respondent to foreclose a mortgage. The mortgage was made to secure a debt of $ 30,000.
Two errors are assigned: 1. That there was a variance between the bond offered in evidence and that described in the mortgage, and therefore, the mortgage was improperly admitted in evidence.
It is not pretended that there was any variance between the bond and the complaint. The point is, that the mortgage recites a particular bond, and that the bond offered in proof does not answer to this description. But this is not matter of variance, properly so-called; it *644is a mere question of identity. If it had been matter of variance, such as in common law actions would have excluded the proof—as not corresponding with the allegation—from the jury, the Court should, and would, at once, have permitted an amendment, so that the proof and the averment might be consistent; for the time has long gone by when small clerical misprisions of this sort are allowed to prevail against the merits of a case. But we understand the rule to be that when a mortgage is given to secure a debt, it is not of the essence of the deed whether the debt be evidenced by one form of contract or another. All that a Court of Equity desires to know in such cases is, what is the debt really intended to be secured; and whether it is called a note or bond is immaterial, so that the debt itself be identified as that for which the mortgage is given. (Jackson ex dem., Merritt v. Bowen & Neff, 7 Cow. 13.) But if this were not so, the answer of the defendants, in the second paragraph, admits the execution of the bond described in the complaint—though it denies the delivery. The bond in the complaint answers to the description of the bond offered. There is no denial in the answer that, to secure this bond, the mortgage set out in the complaint was executed. The general denials (as we have often held) which are sometimes made by traversing literally and conjunctively the statements of a sworn bill, are not legitimate for the purpose of putting in issue specific allegations; for a party may well deny in this way the entire charges in form as stated against him, in consistency with admitting the truth of the specific charge, or even the substantial fact; relieving his conscience under the notion that he has only denied dll to be true which is alleged against him, and not each and every part. But the object of the rules of pleading is to prevent any such evasion, and to require a denial of every specific averment, and this in its substance and spirit, and not merely a denial of its literal truth; and the defendant is held to an admission whenever he fails to make suvch denial. This was the law' of the old equity system of pleading, whose rules were probably the most perfect for the elucidation of truth ever devised; and they are not less the rules of our present system. (Sto. Eq. Pl., sec. 852, et seq.)
We think, then, taking the complaint and answer together, that they substantially admit that the bond and mortgage counted on by the complaint were executed by the defendant Vallejo, and that the mortgage was given to secure the debt evidenced by the bond described in the complaint and produced on the trial.
*645But apart from this, the evidence of identification was sufficient. (See 7 Cowen, supra.)
It is true, the answer does deny the delivery of the bond; but its possession by the plaintiff was evidence of delivery. There is nothing in the point, that an admission in an answer cannot be availed of by the plaintiff, without entitling the defendant to the benefit of the whole as proof. An answer is no proof for the defendant, under our statute; but his admission of a fact stated in the bill, is conclusive evidence against him.
2. The next point is, that the decree was against the weight of evidence. The defendant Vallejo, on the calling of the cause, made an affidavit for a continuance. This affidavit stated facts which he expected to prove by one Adler. The plaintiff, to avoid the continuance, admitted that Adler would testify to these facts; and the trial proceeded. This affidavit,, therefore, became evidence, but not conclusive proof of its contents. The Court found against the evidence of this witness, for we must regard this affidavit as his deposition. It is not necessary to decide whether this affidavit makes out a defense. The only material question is, whether the Court was bound to believe it. We do not understand that the credulity of a Court must necessarily correspond with the vigor and positiveness with which a witness swears. A Court may reject the most positive testimony, though the witness be not discredited by direct testimony impeaching him or contradicting his statements. The inherent improbability of a statement may deny to it all claims to belief. In this case it was proposed to prove by Adler that Blankman bribed him to cheat Vallejo; that Vallejo owed Blankman nothing; that Adler had been the interpreter and confidential agent of Vallejo; and that he was frightened by Blankman into giving this mortgage, by the threat that Blankman would sue him on account of some supposed indebtedness as guardian to Blankman’s wife, and take all his property; and that, in consideration of this, and nothing else, (the witness is supposed to swear) Vallejo did execute this bond and mortgage. Against this solitary affidavit—coming from such a source—and so out of all the usual course and experience of affairs, is the proof of the mortgage and bond ; the friendly—indeed, affectionate—letters of Vallejo to Blankman, subsequently written; the long recognition of this as a binding contract; the payment for several years of interest on the mortgage, and the proof too, of some liability, as guardian, by Vallejo to Mrs. Blankman. *646It is not necessary for us to pass upon the relative weight of these proofs of plaintiffs and defendants, but we cannot hesitate to say, that in deciding as it did, the Court below did not commit such an error as we can revise.
Decree affirmed.*
This case ought to have been reported in 12 Cal.