dissenting. The practice as to the right to open and reply should be clearly settled. The rule is as follows: the plaintiff being the actor, has as a matter of course, the right to open and reply, “unless the defendant admits his cause by the pleadings, and takes upon himself the burden of proof.” That is to say, the plaintiff’s whole cause, so fully as to entitle the plaintiff, in the absence of affirmative defence, to the judgment, &c. See Boyce v. Lake, 17 S. C., 486 ; Sanders v. Sanders, 30 Id., 208.
Was the plaintiff’s whole case so admitted in the pleadings here, as to entitle him, without proof, to the verdict ? It seems to me, that must depend upon the enquiry, whether the allegation that “no part of the note had been paid, but was still due and owing,” was a substantive allegation, distinct from that as to the mere execution of the note. The execution of the note was “admitted” in the answer, but the other allegation above stated was not admitted. Indeed, its admission would have been inconsistent with the whole defence. On the contrary, the money allegation was, at least, impliedly denied by the defence of failure of consideration. Then was the money allegation a mere statement of legal liability, as an incident of the note? or a distinct allegation of fact in the plaintiff’s case; and if not admitted, necessary to be proved ? To say that one is “indebted” to another in a given amount is not merely expressing a conclusion of law, but alleging a fact. Miller v. George, 30 S. C., 526.
In this respect, it is difficult to distinguish the case from that *174of Sanders v. Sanders, supra. In that case a note was sued on, and the further allegation made in the complaint that a certain amount of money was still due. The answer admitted the execution of the note, but did not admit the money allegation. The defence was that the whole note had been paid in full. It was held that “when the plaintiff alleges in his complaint the delivery of a note, and that a certain part of it is still due, it is necessary for him to prove his allegation, and that the defendant was not entitled to the reply.” So here, was it not necessary for the plaintiff to prove his money allegation ? In neither case was anything “admitted” but the execution of the note, and if it w'as necessary in one case to prove the money allegation, why was it not necessary in the other ? In regard to the necessity of proving it, I cannot see that there is any difference in principle, between the defence of payment and that of failure of consideration. The question is not whether the defence, if proved, would incidentally defeat the money allegation, but whether the plaintiff would not, in the first instance, be bound to prove it. It seems not enough, as stated by Lord Chief Justice Denman, that the defendant should admit the cause of action in the record, and pleading only some affirmative fact, which, if proved, will defeat the plaintiff’s action. The plaintiff is privileged and required to begin whenever anything is to be proved by him.” See Burckhalter v. Coward (16 S. C., 443) and Mercer v. Whall, 5 Ald. & E. (N. S.), 447.
But it is said that the money allegation, if regarded as material, is not denied by the auswer, and would, therefore, be deemed to be “admitted” under section 189 of the Code, which declares, “Every material allegation of the complaint, not controverted by the answer, &c., shall, for the purposes of the action, be taken as true,” &c. I cannot see that this section should have anything to do with the question here. The rule of court declares that the defendant shall have the right to reply, when he admits the plaintiff’s whole cause of action ; while the section of the Code referred to makes a provision of general law as to what proofs need not, under certain circumstances, be formally offered at the trial in any case. The two provisions have very different objects, and are wholly disconnected. It is said, how'ever, that *175inasmuch as the defendants did not “controvert” the money allegation, it “must be taken to be true.” If this be admitted as to the trial, it seems to me that it is simply the legal effect of standing silent, and is not and cannot be properly construed to be a positive “admission” in the sense of the rule. This is the first case in which the aforesaid section of the Code has been relied on in making out the “admission” of a defendant, so as to give him the right to reply, and I greatly fear it will lead to further confusion on the subject. In determining the question as to the right to reply, the simple question is, whether the defendant has “admitted” the plaintiff's whole cause ; and, as it seems to me, that can only be ascertained by the express admissions of the defendant as shown by the record. Mitchell v. Fowler, 21 S. C., 298. I think the judgment below should be affirmed.
Judgment reversed.