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).
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,
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),
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
In the King’s Bench, Term,
William IV. C.D.
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
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.
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).
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
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.
‘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).
PLEAS—PEREMPTORY OR JN BAR
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
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 &
FLEAS IN CONFESSION AND AVOIDANCE
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
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:
In the King’s Bench, Term, in the Year of the Reign of King George
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).
PLEAS—PEREMPTORY OR IN BAR
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:
In the King’s Bench, Term, in the Year of the Reign of King William
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;