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13. See, on this point, the remarks of Alderson, B., in Lewis v. Alcoclc, 3 11. & W. 188, 150 Eng.Itep. 1110 (1838).
14. White v. Teale, 9 L.J. (Q.B.) 377 (1840).
1~. 2 Selwyn, Nlsl Prius, 1380 (Edited by Fish, Philadelphia, 1857).
10. Martin, Civil Procedure at Common Lan-, c. XI, Defences in Bar by Way of Traverse, Art. 11, Con­eral Traverse, 266, Trover, 227 (St. Paul, 1905).

Sec. 251


PLEAS—PEREMPTORY OR IN BAR

495


and injury, when, etc. and says, that he is not guilty o the said supposed trespass and ejectment above laid to his charge, or of any part thereof, in manner and form as the said A. B. hath above thereof complained against him; and of this he the said C. D. puts him­self upon the country, &c.
3 CHIflY, Treatise on Pleading with Precedents and Forms, ¶1141 (13th Am. ed., Springfield 1859).
IN view of the fact that Ejectment orig­inated as a Personal Action in which the lessee sued for Damages for Ouster from his Term, the Plea of the General Issue consti­tuted a General Traverse as in other forms of Trespass Actions, It thus operated to place in Issue all the Material Allegations stated in the Declaration, that is, the Right to Let, the Entry, the Actual Lease, and the Ouster. But in time the Scope of “Not Guilty” was re­stricted by the Common Consent Rule, under which the Actual Tenant, as a condition of being substituted in place of the Casual Ejec­tor, was compelled to admit the Entry, the Lease and the Ouster, leaving in Issue only Title.
As a result of the development of the Ac­tion, the General Issue in Ejectment—”Not Guilty”—operates as follows: (1) As a De­nial of the Unlawfulness of the withholding, that is, of the Plaintiff’s Title and Right to Possession; (2) All Defenses in Excuse or Discharge, including the Statute of Limita­tions, are available.17
Specific Traverse
THE defendant, under the General Issue, cannot be heard to dispute that he held
17. English: Taylor v. Horde, I Burr, 60, 97 Eng.Itep.

190 (1757); Alabama: Bush v. Thomas, 172 Ala. 77,

55 So. 622 (1911); Illinois: Roosevelt V. Hungate,

110 III. 595 (1854); Federal: Hogan v. Kurtz, 94 U.

S. 773, 24 LEd. 817 (1876).
In general, as to Defenses admissible tinder the Gen­eral Issue or General Denial in Ejectrnent, see Note.

L.R.A.1918F, 247 (1918).

possession. In Illinois, the defendant would Deny by a Special Plea, Verified by Affidavit, that he was in possession or claims any inter­est or title in the premises, or that any de­mand of possession was made.15
PLEAS IN CONFESSION AND

AVOIDANCE IN EJECTMENT


251. In Ejectment, as Affirmative Defenses are admissible under the General Issue, it is not proper to Plead them Specially. Equitable Defenses are not allowed in Ejectment.
AFFIRMATIVE Defenses are wholly im­proper in Ejectment, as these Matters are available under the General Issue,’° nor are Equitable Defenses 20 permitted in Eject­ment. It constitutes no Defense in Ejectment that the deed of the plaintiff was secured by fraud going to the consideration, as contrast­
18. Itev.St,Ill. c. 45, § 21 (1955) A Chart of Illinois Defensive Pleading, 1 Univ.lll.LBull. Ne. 5. 189, 212— 213 (1918), by Professor Henry W. Ballantine.
29. Edwardsvillc B. Ce- v. Sawyer. 02 III. 377 (1870).
20. In general, on the subject of Equitable Defenses, see:

Treatise: Mayne, Equitable Defenses and Eeplica­tions under the Common Law- Procedure Act of 1854 (London, 1854).


Articles: Ames, Specialty Contracts and Equitable

Defenses, 9 I-Iarv.L.Hev. 49 (1895); Ilinton, Equita­ble Defenses under Modern Codes, 18 Mich.L.ltev,

717 (1920); Cook, Equitable Defenses, 32 Yale L.J.

645 (1923); 1-lutchins, Equitable Ejeetment, 26 CoIL.

Rev. 436 (1926); Meflaine, Equitable Defenses to

Actions at Law in the Federal Ceui-ts, 17 Calif.L.

Rev. 591 (1920) : Crawford, Eqnilable Dc-f,-nses to

Actions at Law Under the Missouri Cnde, 25 Wash.

U.L.Q. 60 (1939); Moreland, EqnitaI’l~, Defenses, I

Wash. & Lee L.lIev, 153 (1040).
Comments: Procedure: Nature of Actions: Interposi­tion of Equitable Cross-Complaint to Legal Aetiuns, 13 Calif.L.Rev. 345 (1925); Aetions~Equity—Ref­ormation of Instruments—Equitable Defenses, 9 Minn.L.Rev. 567 (1025); Nethed of Trial of Equita­ble Defenses to Law Actions, 25 ColL.Uev. 630 (1925); Pleading: Equities Affecting Legal Causes of Action as Defenses or Counterclaims: Mode of Trial of Such Issues, 11 Cornell L.Q. 396 (1926); Eject,uent—Ilight of Action reid Defeneeg—lVhotl,or or Not Equitable Defenses and Counterclaims May Presently be Interposed in Ejectiaent Proceedings, 25 Chi.Kent LEer. 232 (1947),

496


DEFENSIVE PLEADINGS

Cli. 22


ed to fraud in the execution, although a Court of Equity might rescind the conveyance.2
At Common Law, it took a Legal Title to maintain or defeat an Action of Ejectment. It follows, therefore, that an Equitable De­fense constituted no Bar to a recovery. Thus, it is no Defense in Ejectment to show that a deed was procured by the plaintiff’s fraud, even though a Court of Equity, on the same showing, might rescind the conveyanceYz Possession of land under a verbal contract, payment of the price, and the making of valu­able improvements thereon, will operate to take the case out of the Statute of Frauds in Equity, hut not in a Court of Law, and such facts constitute no Defense to an Action of Ejectnient. The defendant, for relief, must have recourse to a separate proceeding in Equity.23 -
In Illinois, when the distinction between the Common Law and Chancery Courts was being maintained, it was not permissible, in an Action of Ejectment, to attack a deed up­on the ground that the grantor was mentally incompetent to execute the deed, as the remedy in such case is in a Court of Equity.
In those states, in which the distinction be­tween Common Law and Equity Jurisdiction is not so strictly maintained, the Defense of Incompetency can be raised in an Action of Ejectment.24 In an Ejectment Action, the Court cannot adjust the equities, if any, be-
21. Dyer v. Day, 61 Ill. 336 (1871); Eseheriek V.

Prayer, 65 Ill. 379 (1872); Fleming v. Carter, 70 ill.

286 (1873); Baltimore & 0. & C. It. Co. V. Illinois

Cent. B, Co., 137 Ill. 9, 27 N.E. 38 (1891).


Estoppel in Pais is available in Equity only.
22. Dyer v. Day, 61 III. 336 (1871); Union Brewing Co. v. Meler, 163 III. 427, 45 N.E. 264 (1896).
- 23. Flemtng v. Carter, 70 111. 286 (1873); Herrell V. Sizeland, 81 III. 457 (1876).
2t Walton v. Malcolm, 264 III. 389, 106 N.E. 211, Ann. Cas. 1915D, 1021 (1915).

In general, on Mental Incompetence as a Defense, see article by Wilkinson, Mental Incompetency as a De­fense to Tort Liability, 17 floc]cy Mt.L.Eev. 38 (1944).

tween the parties, nor can the defendant rely upon the doctrine of Estoppel in Pals Ian estoppel by the conduct or admissions of the party] as a Defense.2~
The Hilary Rules had no application to Ejectnient.
THE GENERAL ISSUE IN DETINUE
252. “Non Detinet” is the General Issue in Detinue, and is a Formal Denial of the Deten­tion, and also operates as a Denial of the Right of Possession or Property of the plaintiff in the goods claimed.
FORM OF THE Gncn~AL ISSUE IN DETII,njE

[Detinue:

Non Detinet]

In the King’s Bench, Term,

William IV.
C.D.

ats.


A.B.
AND the said C. IL, by William Johnson, his attorney, comes and defends the wrong and injury, when, &c., and saith, that he does not detain the said goods and chattels in the said Declaration specified, or any part thereof, in manner and form as the said AS. hath above thereof complained against him, and of this he the said C.D. puts himself upon the country, &c.
MARTIN, Civil Procedure at Common Law, Appendix, Form (53) (St. Paul 1905).
Scope of five General Issue in Detinue

IN Detinue, the Declaration states that the defendant detains certain goods or chattels of


25. Lanum v. Barrington, 267 III, 57, 107 N.E. 820 (1915); Nichols v. Caldweil, 275 III. 520, 114 N.E. 278 (1916).
The same rule applies in Forcible Entry and Detainer. Baltimore & 0. & C. B. Co. V. Illinois Cent. B. Co., 137 III. 9, 27 N,E. 38 (1891).

“Even in the case of a naked trustee the Law is so streixuous for the Legal Title that It enables the trustee to recover In Ejeetment against the ceettti que trust.” Kirkpatrick v. Clark, 132 III. 342, 24 N. E. 71, 22 Mn.$t.Bep. 531. 8 1J.R.A. 511 (1890).

PLEAS—PEREMPTORY OR IN BAR

497

Sec. 255
the plaintiff, and the General Issue—”Non Detinet”—alleges that “he does not detain the said goods and chattels in the said Declara­tion specified,” etc. The Plea is proper, not only where the Denial is of the actual deten­tion of the goods mentioned, but also where it is that the goods so detained are the prop­erty of the plaintiff, as it places Both Facts in Issue. Any Proof necessary to controvert these Facts, therefore, is admissible, as show­ing that there has been no detention.26


PLEAS IN CONFESSION AND AVOID.

ANCE IN DETINUE


253. In Detinue, matters in Excuse or Dis­charge should be Pleaded Specially.
EVIDENCE strictly in Justification, as that the goods are pledged to the clef endant,2~ or as establishing a lien upon them in his favor,2’ are not admissible under the General Issue, as the detention would be thereby ad­mitted. These are Special Defenses, which tend to show that the detention was rightful. Matters in Excuse or in Discharge should be Specially Pleaded.
THE HILARY RULES—TJIEIR EFFECT UP­ON NEGATIVE AND AFFIRMATIVE

DEFENSES IN DETINUE


254. “Non Detinet”, after the Rilary Rules, operated as a Denial of the Detention of the Goods by the defendant, but not of the Plain­tiff’s Property therein; and no defense other
~ Alabama: Dozier y. Joyce, 8 Port. (Ala.) 303

(1838); Brown x. Brown, 13 Ala. 208, 48 Am.Dec.

52 (1848); Illinois: Robinson v. Peterson, 40 Il1.App.

132 (1865); Kentucky: Tanner v. Allison, 3 Dana

(Ky). 422 (1835); Virginia: Smith v. To~vnes’ Adm’r,,

4 Munf. (Va.) 191 (1814).


27. Martin, Ciyil Procedure nt Common Law, c. XI, Defences in Bar by Way of Traverse, Art. II, Gen­eral Traverse, § 267, Detinue, 228 (St. Paul, 1905y; Richards v. Frankum, 6 M. & W. 420, 151 Eng.Rep. 476 (1840).
When the detention is excused or justified, the de­fendant must plead his defense.

~. Philips v. Robinson, 4 Ding. 106, 130 Eng.Eep. 708 (1827); Richards v. Franl~um, 6 hI. & W. 420,

151 tng.Rep. 476 (1840).

than such Denial was admissible under that Plea.

In Detinue, under the General Issue of “Non Detinet,” at Common Law the del end-ant might offer evidence of his property in the goods, or that the plaintiff had made a gift of them to him, as that proved that he did not detain the plaintiff’s goods. But by the Hilary Rules it was provided that “the Plea of Non Detinet shall operate as a denial of the detention of the goods by the defend­ant, but not of the plaintiff’s property there­in; and no other defense than such denial, shall be admissible under that Plea.” The detention contemplated by the Rules, how­ever, is an adverse and wrongful one.2° In this action, the defendant must, under the above Rule, Specifically Deny the plaintiff’s property in the goods, when necessary for his Defense.”


THE GENERAL ISSUE IN REPLEVJN
255. “Non Cepit” is the Genera! Issue in Replevin, and is a Formal Denial of the Fact and the Place of the alleged taking. It De­nies the Taking only, and not the Plaintiff’s Right of Possession,
Where Replevin may be and is brought for goods Lawfully Obtained, but Unlawfully De­tained, the General Issue is “Non Detinet,”

which is a Denial of the detention only, and not of the Plaintiff’s flighL

FORMS OF ThE GENERAL ISSUE IN
RE PLE VIM
(For a Taking—Non Cepit)

State of _______

The ______ Court for the County of C.D.

ats.
A.B.


AND the said defendant, by William John­son, his attorney, comes and defends the
29. Clements v. Flight, 16 hI. & W. 42, 153 Eng. Rep. 1000 (1848).

30. RIchards v. Frankun,, 6 M. & W. 420, 151 Eng. Rep. 476 (1840).

498

DEFENSIVE PLEADINGS



Ch. 22

wrong and injury, when, etc., and says, that he did not take the said goods and chattels (describing them), in the said declaration mentioned, or any or either of them, or any part thereof in manner and form as the said plaintiff hath above thereof complained against him, and of this the said defendant puts himself upon the country, etc.


Encyclopedia of Forms. Form No. 17,759.

(For a Detention—Non Detinet)

State of _______

The Court for the County of
C.D.
ats.

A,R
AND the said defendant, by William John­son, his attorney, comes and defends the wrong and injury, when, etc., and says, that he does not detain the said goods and chattels (describing them) in the said declaration mentioned, or any or either of them, or any part thereof, in manner and form as the said plaintiff hath above thereof complained against him, and of this the said defendant puts himself upon the country, etc.


Encyclopedia of Forms. Form No~ 17760.
THE General Issue in Replevin—”Non Ce-pit Mocio Et Forma”—operates to Deny the taking of the goods or chattels in the place mentioned.3’ As it denies only the taking, the property in the goods, and possession of the goods by the plaintiff at the time of the
31. “The flea of Non Cepit Modo Et Forma, as used in this Action, has been classed with Pleas of Ge,,­eral Traverse, raising the General Issue. But it is a Plea of such limited Scope that its classifica­tion with General Traverses may well be ques­tioned.” Martin, Civil Procedure at Common Law, c. XI, Defences in Bar by Way of Traverse. Art. IT, General Traverse, 268, Beplevin, 229 (St. Paul, 2905).

seizure, are admitted,35 and hence under this Plea the defendant cannot have a return of the goods.33 This Plea applies to the case where the defendant did not in fact take the goods or chattels alleged, and where he did not .take or have them at the place mentioned in the Declaration.34 Thus, the Sole Issue raised is whether the defendant seized the goods at all, or at the place stated. It fol­lows, therefore, that the Traverse is clearly


32. Dover v. Rawlings, 2 31. & Bob. 544, 174 Eng.Rep.

375 (1844).


‘The distinction between the effect of “Non Copit” in Replevin and “Non Detinet” in Detirine and “Not Guilty” in Trover is here noticeable. See Wndman

v. North, 2 Let. 92, 83 Eng.Rep. 465 (1613), In which the opinion reail:


“Beplevin, the defendant justified and Pleaded in Bar, that the beasts belonged to a stranger, absqae hoe that they were the beasts of the plaintiff. Upon this the plaintIff demurred, beeause this is only Matter in Abatement, and not in Bar and also it amounts to the General Issue. Ctjria, In Trespass this would amount to the General Issue; but not in Replevin, and may be pleaded either in Abatement or in Bar. And there needs no Avowry Pro Rejonjo Jfabe,ulo in this ease, for the goods being not the plaintiff’s, the Avowant must have a return of them, 2 Cro. Sakud against Shelton; and Judgment was given for the defendant.’
See, also, the following eases: Illinois: Galusha v.

Butterneld, 2 Scam. (Ill.) 227 (1840); Dole v. Ken­nedy, 38 Ill. 282 (1865); Dyer v. Brown, 71 I1LApp,

317 (1897); Indiana: Trotter v. Taylor, 5 Blackt

(lad.) 431 (1840); Mni,,e: Viekery v. Sherburne, 20

31e. 34 (1841); Pennsylvania: Williams v. Smith, 10

Serg. & K. (Pa.) 202 (1823).


33. Illinois: Mount Carbon Coal & Ii. Co. v. Audrews,

53 LII. 176 (1870); van Namee v. Bradley, 69 III, 299

(1873); Massachusetts: Simpson v. McFarland, Is

Pick. (Mass.) 427, 29 Am.Dee. 602 (1836).


34. English: 3o1,nsor, ‘cc Woflyer, 1 Str. 507, 53 Eng. Rep. 666 (1721); Potter v, North, 1 Wrns.Saund, 347, it 1, 85 Eng.Bep. 503 (1669); New York: Smith v.

Snyder, 15 Wend. (N.Y.) 825 (1836).


Where the Declaration is for the unlawful detention only, the Plea in Denial should be “Non Detinet” or “Non Detinuit ;“ and that would seem on principle to be the Proper Plea at the present time, unless in case of an actual wrongful taking, since the gist of the Action is now the Wnngful Detention. Bourk v, Riggs, 38 III. 321 (1865); Chandler -cc Lincoln, 52 Ill. 14 (1869).

Sec. 256


PLEAS—PEREMPTORY OR JN BAR

499

in the Nature of a Specific Traverse, and hence should be so classified.35


The Effect of the Statutory Merger of Det­mug and Replevln Upon the General Is-sue in Replevin

WHEN the Wrongful Act of the defendant consists only of a Wrongful Detention, after a Lawful Taking, and Replevin is allowed by Statute, “Non Detinet” becomes the Gen­eral Issue as in Detinue; but the effect of this Plea is no greater than that of “Non Cepit,” and, therefore, if the defendant wish­es to Deny the Plaintiff’s Property, he must allege an Adverse Title in himself, or some one under whom he claims. The Pleas of “Non Cepit” and “Non Detinet” thus both concede the Right of Possession to be in the Plaintiff, and only put in Issue the Taking and the Detention, as the case may be.3°


By Statute, in Some States, a Plea of “Not Guilty” or other General Issue, is allowed to put in Issue, not only the Wrongful Taking and Detention, but also the Right of the Plaintiff to the Possession of the property claimed, and even Matters in Excuse may be admissible under it.3
TIlE SPECIAL TRAVERSE IN REPLEVIN
256. The Denial of the Right or Title of the Plaintiff is commonly made by a Peculiar Argumentative Species of Denial, known as

a Special Traverse.


35. Martin, Civil Procedure at Common Law, c. XI, Defences in Bar by V/ny of Traverse, Art. II, Gem cml Traverse, § 268, Replevin, 229 (St. Paul, 1905).
~6. Florida: Hopkins v. Bumney, 2 Fla. 42 (1848);

Illinois: Van Namee v. Bradley, 09 Ill. 299 (1873).


37. Florida: flolliday v. EcKinne, 22 Fla. 153 (1886);

Mississippi: Bennett v. Holioway, 55 Miss. 211

(1877).
The General Denial in Beplevin under the Codes has a peculiar comprehensiveness and permits almost all Defenses, Affirmative as well as Negative. Note:

Pleading—Bep)evin—--.Wbat Defenses are Provable Under a General Denial, S Minn.L.Rev. 563 (1021); Squire, General Denial in Replevin, 24 Case & Corn­monl 21 (1017).

A SPECIAL Traverse is the proper Form of Denial of the Right or Title of the Plaintiff in an Action of Replevin. It consists of two parts: (1) An Affirmative Statement by Way of Inducement, setting up the facts and circumstances inconsistent with the Right or Title of the Plaintiff, such as Title in the De­fendant or in a Third Person; (2) An Abs que Hoc Cause follows this Argumentative De­nial with a Direct Denial of the Plaintiff’s Right.35 Thus, to illustrate, suppose the plaintiff in Replevin alleges that the defend­ant Wrongfully took his cattle. The defend­ant, Pleading an Affirmative Statement by Way of Inducement, would allege “that the cattle were the cattle of X, a stranger.” But Two Affirrnatives do not create an Issue. If, therefore, the defendant ended his Plea at this point, it would be subject to a Special Demurrer as an Argumentative Denial. To avoid this, the defendant adds his Absqw3 Hoc Clause—and not the cattle of the plain­tiff—which turns the Argumentative Denial into a Negative Plea Denying Title.3°
Under a Plea by Way of Special Traverse, the plaintiff had the burden of Proof, and the defendant, if he succeeds, is entitled to a return of the goods, without the necessity of making an Avowry or Cognizance, because the plaintiff must recover on the strength of his own title and right to immediate posses­sion.40
38. Chandler t Lincoln, 52 111. 74 (1869); R~’ynolds

v. McCormick, 62 Ill. 412 (1872); Va]i Naniec v.

Bradley, 69 III. 299 (1878); Atkins v. Byrnes, 71

XII. 326 (1874); Lamping v. Payne, 53 111. 403 (1876);

Pease v. Ditto, 189 Ill. 456, 59 N.E. 083 (1001).
3°- Chambers v. Hunt, 18 N.J.L. 339 (1841).
40. Illinois: Reynolds v. McOormick, 62 Iii. 412 (1872); Atkins v. Byrnes, 71 Ill. 326 (1874): Massa­chusetts: Quincy v. Hall, 1 Pick. (Mass.) 857, 11 Am. Dec. 198 (1823).
The Plea of property in a third person in Replcri,i is matter of Inducement to a Formal Traverse of the right of property in the plaintiff, which must he proved by the plaintiff. Delaware: Beatty v. Par­ons, 2 Boyce (Del.) 134, 78 A. 302 (1910), involving a denial of property in the plaintiff; Illinois: Kee &

500


DEFENSIVE PLEADINGS

Ch. 22


FLEAS IN CONFESSION AND AVOIDANCE

IN REPLEVIN


237. Affirmative Defenses must be Specially

Pleaded. An Avowry or Cognizance is a Plea somewhat in the nature of a Cross-Action by the defendant.

MATTER in Justification and Excuse for the taking, such as Levy on Execution or At­tachment, or on Distress, or Seizure for Tax­es, must be Specially Pleaded,4’ as also the Statute of Limitations, Satisfaction or Re­lease,42 and Estoppel to claim the goods.43
Where the defendant desired to Justify his taking as landlord, or on behalf of someone else from whom he derived his right to dis­train, he Pleaded what was known as an Avowry, which justified the taking of the goods in his own right, or Cognizance, under which he claimed the goods or chattels in the right or on behalf of another. The usual grounds were the taking on Distress Warrant for rent in arrear, or taking under Legal Process,44 Such Fleas avowed or acknowl­edged the seizure of the goods or chattels in question, and set forth the facts of a tenancy and of arrearage in rent, and Con­cluded by demanding a return of the seized property. The Avowry or Cognizance thus admits that the plaintiff is the owner of the goods, and alleges a right to take or detain them as security for the rent al­leged to be due. Such a Plea was in the raLure of a Cross-Declaration, and hence the
Cliapell Daity Co. v. Pennsylvania Ce., 291 II], 248, 120 N.E. 179 (1920).
41. Wheeler V. Mecorristen, 24 Ill. 41 (1860); Mount Carbon Coal & It. Co. v. Andrews, 53 Ill. 170 (1570); Lammets v. Meyer, 59 111. 214 (1871); Sehemerhorn v. Mitchell, 15 IIl.App. 418 (1884); Lowry v. Kinsoy, 26 flJ.App. 209 (1887).
4~- Anderson v. Takoit, I Oil. (IlL) 365 (1844); SIm­incus v. Jenkins, 76 Ill. 470 (1875).
43. Leeper v. fleraman, 58 111. 218 (1871); Colwell v Brower, 75 111. 510 (1874); Mann v. Oberne, 15 III, App. 35 (1884).
44. James v. Dunlap, 2 Seam. (III.) 481 (1840); Day­ton v. Fry, 29 III. 525 (1563); Krause v. Curtis, 73 Ill. 450 (1874~.

plaintiff’s Next Plea was not a Replication but a Plea in Bar, after which followed the Replication, Rejoinder, etc., the ordinary name of each Stage of Pleading being thus postponed one step further than in an ordi­nary action. In Pleading thereto, the plain­tiff invoked the Plea of Rien.s en Arrere (nothing in arrear), which was recognized as the General Traverse for rent due on a de­mise.43 ‘l’his Plea, entered at what was usually the Replication Stage of Pleading, and in Form more like a Specific than a General Traverse, was restricted in Scope, admitting the defendant’s title as stated in the Avowry, and operating only to Deny that any rent was in arrear.4°


The Hilary Rules in no way changed the Scope of the So-called General Issue in Re­plevin, as in Form it was already in the Na­ture of a Specific Traverse. As has been ob­served, “Non Cepit,” the General Issue, op­erated only to Deny the taking in the place mentioned; it did not operate to put in issue title, and hence the development of the Spe­cial Traverse, discussed in a preceding sec­tion, to accomplish that end when desired.
TIlE GENERAL ISSUE IN DEBT ON SIMPLE CONTRACTS AND

STATUTES
258. The proper General Issue in Debt on Simple Contracts or on Statutes is “Nil Debet,” which is a Formal denial of the Debt. It Not only Denies the existence of any contract, but under it Defenses in Excuse or in Discharge may also be shown.


FORM Of’ THE GENERAL ISSUE IN DEBT

[Debt on Simple Contract:

Nil Debet]

In the King’s Bench, Term, in the Year of the Reign of King George

the Fourth.
IS. Gould, A Treatise on the Principles of Pleading, Part III, Of Pleading, Div. v, or Pleas to the Ac­tion, e. i, Of the General Issue, and Special Issues; Including Also Immaterial and Informal Issues, 481 (6th ed. by Will, Albany, 1909).
46. Huh’. WrIght, 2 Esp. 069, 170 Eng.Eep. 491 (1798).

Sec. 258


PLEAS—PEREMPTORY OR IN BAR

501


C. 31
ats.

A.B.
AND the said C. D., by William John­son, his attorney, comes and defends the wrong and injury, when, &c., and says that he does not owe the said sum of money, above demanded, or any part thereof, in manner and form as the said A. B. hath above thereof complained against him, and of this he, the said C. D., puts himself upon the country, &c.


MARTIN, Civil Procedure at Common Law, Appendix, Form (50) (St. Paul 1905).
FORM OF THE GErqntAL ISsUE IN DEBT

UNDER THE HILARY RULES

[Debt on Simple Contract:

Nunquam Indebitatus]

In the King’s Bench, Term, in the Year of the Reign of King William

the Fourth.

CD.
ats.

A. B.


}

AND the said Defendant, by William John­son, his attorney, says, that he never was in­debted in the manner and form as in the dec­laration alleged. And of this he puts himself upon the country.


MARTIN, Civil Procedure at Common Law, Appendix, Form (50) (St. Paul 1905).
WHERE the Action of Debt is not found­ed on a Record or a Specialty, the General Form of Traverse is “Nil Debet,” meaning that the defendant owes nothing; and it ap­plies without regard to whether the debt aris­es by the operation of a Statute or by Simple Contract. As “Nil Debet” denied a present existing debt, the Courts gave a very broad construction to it, permitting Defenses which went to show the non-existence of the debt. Thus, for example, where the Declaration

in Debt on Simple Contract alleged that the defendant is indebted to the plaintiff for goods sold and delivered, to which the de­fendant pleaded “Nil Debet”, that is, that “he does not owe the money alleged to be due,” the Issue on the Pleadings, framed in the present tense, is: Is the defendant pres­ently indebted to the plaintiff? Were the Allegation merely “that the goods were not sold and delivered,” it would, of course, be applicable to no case but one where the de­fendant intends to deny the sale and de­livery; but, as the Allegation is that he does not owe, it is evident that the Plea is adapted to any kind of Defense that tends to deny an existing debt, and, therefore, not merely, in the case supposed, to a Defense consist­ing of a Denial of the sale and delivery, but also to the Defenses of Arbitrament, Satisfaction, Release, and a multitude of oth­ers, to which a Traverse of a narrower kind would be inapplicable.4’ It has been said that the Defenses of Bankruptcy, the Stat­ute of Limitations and Tender are the only ones which could not be proved under the Plea of Nil Debet.48 However this may be, it appears that there is hardly any Mat­ter of Defense to an Action of Debt to which the Plea of “Nil Debet” is not applicable, be­cause almost all Defenses resolve themselves into a Denial of the Debt.49 The Scope of the


47. In general, on the subject of Payment as a DC-tease, see;
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