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Articles: Alden, The Defense of Payment Under Code Procedure, 19 Yale Li 047 (1910); Reppy, The Anomaly of Payment as an Affirmative Defe,,se 10 Cornell LQ. 269 (1925). Comment: Pleading—Hocq to Raise the Issue of Payment, 31 Mieh.L.Rev. 182 (1932). Annotation: May Payment be Proved Under the General Issue or General Denial, or Must it be Specially Pleaded? 100 A.L.R. 264 (1936). 48. Martin, Civil Procedure at Common Law, e. XI, Defences in Bar by Way of Traverse. Art II, General Traverse, § 200, Debt, 220 (St. Paul, I905). 40. English: Bussey v. Barnett, 9 M. & W. 312, 152 Eng.Itep 132 (1842); Illinois: Bailey v. Cowles, 80 In. 333 (1877) involving the Defense of Accord aail 502 DEFENSIVE PLEADINGS Plea is almost the same as the General Issue of “Non Assurnpsit” in Indebitatus Asaumpsit.
AND STATUTES 259. With the possible Exception of Bankruptcy, the Statute of Limitations and Tender, which it may be necessary to Plead Specially, most Defenses in Debt might be shown under “Nil Delict,” whether going to the Denial of a Material Allegation or to Dispute Liability. AS previously observed, it was said that the Scope of “Nil Debet” was so broad, that the only Defenses which had to be Pleaded Affirmatively were Bankruptcy, the Statute of Limitations and Tender.7’ Satisfaction: Massachusetts: Stilson v. Tobey, 2 Mass. 521 (1807); Burnham v. Webster, 5 Mass. 200 (1809) New Hampshire: Trustees of Dartmouth College v. Clough, S NFL 22 (2835); New York: Rullis v. Giddens, S Johns. (N.Y.) 52 (1811); McKyring v. Bull, 2€ N.Y. 295, 09 Ani.Dec. 006 (1857); Tennessee: McGavoek v. Pui)’ear, 0 Cold. (Ten,,.) 34 0868); Federal: Lindo v, Gardner, 1 Cranch (V.a.) 343. 2 LEd. 130 (1803). ~0. Gould, A T:ea t se an the Pci,,eiplr’s of Plea S i,tg. Part III, Of Pleading, Div. V. Of Pleas to the Action, a I, Of the General Issue, unit Special Issues; Inelu S lug Also lni,naterial and Infonuat Issues, 480 (0th ed. by Will, Albany, 100(1). 51, Martin, Civil Procedure at Co,nmo,, Law, c. XI, Def,-neus in Bar by Way of Traverse, Art. Il, General Traverse, 200, Debt, 220 (St. Paul, 1905). See, in this connection, Chapple v. Durston, 1 Cr. & 3. 1, 0, 145 Eng.ltep. 1311, 2314 (153w, in which Vaughan, 3., in referring to Chief Justice Ilolt’s holding, in the Case Anonymous, I Salk, 278, 91 Eng.Rep. 243 (2090), that the Statute of Limitations might be given in evidence upon “Nil Dcbet” pleaded, observed: “It appears to us that this distinction savors InUre of Ingenious refinement than of plain and practical good sense, and we conceive that the same rule would now be extended as well to Actions of Debt TIlE IHLARY RULES—THEIR EFFECT UPON THE SCOPE OF THE GENERAL ISSUE IN DEBT ON SIMPLE CONTRACTS AND STATUTES 260. The Rilary Rules changed the General Issue in Debt from “Nil Delict” [1 do not owe] to “Nunqiiam Indehitatus” U never did owej, in Actions of Debt on Simple Contracts other than Bills of E~cchange and Promissory Notes, and hence, as in Inclebitatus Assumpsit after the Hilary Rules, all Matters in Confession and Avoidance are to be Specially Pleaded. The Hilary Rules abolished the Flea of “Nil Debet.” 52 The Plea “Nunquam Indebitatus” was substituted in lieu thereof in all Actions on Simple Contracts, other than Bills of Ex change and Promissory Notes. The same ef feet was given to this New Form of Flea as to the Plea of “Non Assumpsit” in Indehitatus Assumpsit under the Hilary Rules, and all Matters in Confession and Avoidance were to be Specially Pleaded as in the Action of Assump sit. In other Actions of Debt in which the General Issue of “Nil Debet” had been used, in-eluding those on Bills of Exchange and as of Assumpsit, the same reason to,’ Pleading the Statute applyi’,g equally to both. If the Statute is not pleaded, the piaintift is liable t0 be surprised, and therefore equally unprepared to answer in the One Action as jo the Other, In neither ease does the Statute extinguish the Debt, but Bars only the I ti’,nedv, and it is optional whether the defendant will insist upon the Statute or waive it. I- he intends to insist upon it, he should plead it to prevent surprise, and if he does not, it should be presu med lie intends to waive it. Phi is is the view taken by the late Mr. Serjt. Williams, than whom a sounder Lawyer, or more accurate pleader has rarely (lone honor te his profession ; and he states It to be very usual, and the modern practice, to plead to debt on Simple Contract, that the Cause of Action did not accrue within six years, that the plaintiff may reply, either that be was within any of the exceptions in the Statute, or that he has sued out a Writ within time, as is the Common Case in Assutupsit.” t2. Martin, Civil Procedure at Common Law, Defences in Bar by Way of Traverse, Art. II, General Traverse, ~ 260, Debt, 220 (St. Paul, 1905). Ck. 22
See. 262 PLEAS—PEREMPTORY OR IN BAR 503 Promissory Notes, the defendant was required to Specifically Traverse some particular Matter of Fact, or enter a Plea in Confession and Avoidance. THE GENERAL ISSUE IN DEBT ON A SPECIALTY 261. The General Issue in Debt on a Spedaily is “Non Est Factum,” which is a Formal Denial that the Deed mentioned in the Declaration is the Deed of the defendant; but it is only proper when the Deed is the foundation of the Action. It Denies the Execution and Validity of the Deed. FORM OF THE GENERAL ISSUE IN DEBT ON A SPECIALTY [Debt upon Specialty: Non Est Factum] In the King’s Bench, Term, in the ______ Year of the Reign of King George the Fourth. C. D. ats.
A. B. AND the said C. D., by William Johnson, his attorney, comes and defends the wrong and injury, when, etc., and says that the said supposed writing obligatory [or “indenture” or “articles of agreement,” according to the subject of the action] is not his deed. And of this he puts himself upon the country. STEPHEN, Principles of Pleading in Civil Actions, 276 (Andrews ed., Chicago 1901). AS the foundation of this action is the Sealed Instrument evidencing the legal debt, and as the defendai2t cannot Deny the Liability if he Executed the Instrument, and it is valid, the General Issue of “Nil Debet” would be improper.53 Under “Non Est Factum,” the 53. English: Wnrren v. Consett, 2 Ld.Itaym. 1500, 02 Eng.Itep. 474 (1720); Colorado: Gargan v. School Dist,, 4 Cob, 53 (1578); Illinois: Russell v. Harnilton, 2 Scam. (III.) 56 (1839); Mix v. People, 02 Ill.
Missouri: Boyntou v. Iteynolds, 3 Mo, 70 (1531). defendant may show either that he Never Executed the Deed in Point of Fact, or that it is absolutely Void in Law,a4 but not Matters which show that it was merely Voidable.
—-such Pleas were held improper. 2[er,-yninn V. Wheeler, 130 Md. 506, 101 A. 551 (1917).
General Issue is “Non Est Paeturn” and, if other Defenses are relied upon, they must be Specially Pleaded. Merrymnn v. Wheeler, 130 Md. 560, 101 A. 551 (1917). But Cf. Adams v. Adnnis, 79 W.Va.
1060 (1738); Pigors Case, 11 Co. 2Gb, 77 E,ig.ltep. 1177 (1614). Illinois: Landt v. McCullough, 130 Ill. App. 515 (1906); Massachusetts: Anthony v. IVilson, 14 Pick. 303 (1833); New York: Van Valke]iburgh v. Honk, 12 Johns. (N.Y.) 337 (1815). At Common Law, the Plea of ‘‘Non Est Fnetuni’ to a Declaration in Debt on a Bond, ,neie]y placed in Issue the Execution of the Bond. Beggs v. Chicago Bonding & Surety Co., 207 lll.App. 621 (1917). 55. English: Collins y. Blantomn, 2 Wiis.K.E. 341, 05 Eng.ltep. 847 (1763); Federal: Mn’-ine Ins. Co. v. Hodgsoa, 6 Craneh (U.S.) 219, 3 LEd. 200 (1810). 504
DEFENSIVE PLEADINGS Cli. 22
Point of Law; but the Defenses of Duress, Fraud, or Infancy ~° had to be Affirmatively pleaded, as they rendered the Deed Voidable only.57 THE HILARY RULES—THEIR EFFECT UPON THE GENERAL ISSUE IN DEBT ON A SPECIALTY 263. Under the Hulary Rules “Non Est Factum” was restricted to a Denial of the Execution of the Deed in Point of Fact Only; all other Defenses were required to be Specially Pleaded, including matters which made the Deed Absolutely Void, as well as those which made it Voidable. The Hilary Rules expressly provided that the Plea of “Non Est Factum” was restricted to a Denial of the Execution of the Deed in Point of Fact Only; all other Defenses, including those which made the Deed Absolutely Void, as well as those which made it Voidable, were thereafter to be Specially Pleaded. In this action, therefore, the defendant must still Plead, as prior to the above Rule, Payment at or after the day, Performance of the Condition of the Bond, or any Matter in Excuse of Performance, such as Non Damnificatus [not injured] to a bond of indemnity, and no award to an arbitration bond. The defendant must also Plead Specially, a Tender or Set-Of f55 TIlE GENERAL ISSUE IN DEBT ON JUDGMENTS 264. The proper General Issue in Debt on Judgments is “Nul Tie! Record,” which Denies the Existence of the Record alleged. 56. In general, on the Defense of Infancy, see: Treatises: Infants’ Lawyer; or, the law (ancient and modern) relating to infants (3d ed. London, 1720); Bingbam, The Law of infancy and Coverture (1st Am. Cd. Exeter, 1824); McPherson, A Treatise on the Law Relating to Infants (Philadelphia, 1843). 07. Whelpdale’s Case, 5 Co. llOa, 7? Eng.Rep. 238 (1603). 08. 1 Tldd, The Practice of the Courts of Icing’s Bench hi Personal Actions, e. XXVIII, Of Pleas In Bar, and Notice of Set-Off, 586 (Philadelphia, 1807). “Nul Tiel Record” sets up: (1) The Defense either that there is No Record at all in existence; or (2) one different from that which the plaintiff has declared on; or (3) that the Judgment is Void on the Face of the Record. All other defenses must be Specially Pleaded. FORM OF THE GENERAL ISSUE IN DEBT ON JUDGMENTS [Debt upon Judgments: Nul Tiel Record] In the King’s Bench, Term, in the Year of the Reign of King George the Fourth. C. D. ats.
A.B. } AND the said C. V., by William Johnson, his attorney, comes and defends the wrong and injury, when, etc., and says that there is not any record of the said supposed recovery in the said declaration mentioned, remaining in the said court of , in manner and form as the said plaintiff hath above in his said declaration alleged, and this the said defendant is ready to verify. Wherefore he prays judgment if the said plaintiff ought t& have or maintain his aforesaid action thereof against the said defendant, etc. 3 CHITTY, Treatise on Pleading with Free.. edents and Forms, 994 (14th Amer. ed., Springfield 1867). THE Plea of “Nul Tiel Record” (no such record) attacks the existence of the obligation alleged; and under it, it may be shown that no such Record exists as is alleged, which is generally done by establishing its invalidity as a Judgment, or advantage may be taken of a Variance in stating it.~9 As it 59. Ohio: Bennett v. Morley & Grifllth, 10 Ohio 100 (1840); Massachusetts: Warren v. Flagg, 2 Pick, (Mass.) 448 (1824); MississIppi; Wright v. WeisInger, 5 smeden & 14. (Miss.) 210 (1045); New York: Bulhis v. Giddens, 8 Johns. (N.Y.) 82 (1811); Star- buck v. Murray, 5 Wend. (N.Y.) 148, 21 Am.Dec. 172 (1830); Vermont: Stevens -cc Fisher, 30 Vt. 200 (1857). PLEAS—PEREMPTORY OR IN BAR is a Maxim of Law that there can be no Averment in Pleading against the Validity of a Record, though there may be against its operation, no Matter of Defense can be Pleaded which existed anterior to the recovery of the Judgment; ~° and, as this Plea merely puts in Issue the existence of the Record as stated, any Matter of Discharge, such, for example, as a Release, must be Specially Pleaded. “Nul Tiel Record” sets up the Defense either: (1) that there is no such Record at all in existence, or (2) a Variance, the Record being Different from that Declared on by the Plaintiff, or (3) that the Judgment is Void on the Face of the Record. All other Defenses must be Specially Pleaded.6’ PLEAS IN CONFESSION AND AVOIDANCE IN DEBT ON JUDGMENTS 265. Matters in Discharge, such as Satisfaction of the Judgment, Release, and Statute of Limitations, must also be Affirmatively Pleaded. ALL defenses, other than set forth above as available under “Nul Tiel Record,” must be Specially Pleaded. If extrinsic evidence is necessary to show that the Judgment is Void, as that it was fraudulently obtained, or that the Court had No Jurisdiction of the Person or Subject Matter, the Defense must be In an Action of Debt on a Judgment or Recognizance, there is properly no true General Issue. “Nil Debet” is said not to be a good Plea to an Action of Debt on a domestic Judgment, nor on a Judgment Tendered in a Sister State. Knickerbocker Life Ins. Co. V. Barker, 55 Ill. 241 (1870). Cf. Hilton v. Guyot, 150 U.S. 113, 16 Sup.Ct. 189, 40 L.Ed. 05 (1805). 6O. Iowa: Gay v. Lloyd, 1 G.Greene (Iowa) 78, 46 Am.Dee. 499 (1847); Mississippi: Cannon v, Cooper, 39 Miss. 784, 80 Am.Dec. 101 (1861): New York: McFarland -v. Irwin, 8 Johns. (N.Y.) 77 (1811); Pennsylvania: Cardesa V. Humes, 5 Serg. & H. (Pa-) 05 (1819); Vermont: Gray v. Fingry, 17 Vt. 419, 44 Am.Dee. 345 (1845).
Ann.Oas. 710 (1907); Id. 131 llLApp. 467 ~1907); Waterbury Nat Bank v. Reed, 231 III. 246, 83 N.E. 185 (1907), involving a Writ of Scire Faeias. Pleaded Specially.62 Matters in Discharge, such as Satisfaction of Judgment, Release, and the Statute of Limitations, must be Affirmatively Pleaded.°3
FORM OF THE GENERAL IssuE IN COVENANT [Covenant: Non Est Factum] In the King’s Bench, Term, in the Year of the Reign of King George the Fourth. C. D.
ats. A.E.
AND the said C.D., by William Johnson, his attorney, comes and defends the wrong and 62. Illinois: Welch v. Sykes, 3 Gil. (Ill.) 197, 44 Am. Dee. 689 (1846); Hopkins v. Woodward, 75 Ill. 62, note (1814); Ambler v. Whipple, 130 III. 311, 324, 28 N.E. 841, 32 Am.St.Rep. 202 (1801); Federal: Hill V. Mendenhall, 21 Wall. (U.S.) 453, 22 LEd. 016 (1815); Comment: Actions on Judgments of Other States— Nul Ticl Record, 2 IU.L.Rev. 326 (1907). But in Forsyth t. Barnes, 228 III. 320, 81 N.E. 1028, 10 Ann.Cas. 710 (1907), It was held that in an Action of Debt on a Judgment by Confession on a note signed by a married woman, the coverture of the defendant may be proved under a Plea of “Nul P101 Record,” though not specifically put in Issue by the Pleading or on the face of the record. “In Debt or Scire Fncias on a Judgment or Recognizance, the General Issue is Nul Tleh Record, which may be properly pleaded, where there is either no record at all, or one different from that which the plaintiff has declared on. But, as this Plea only goes to the existence of the record, the defendant roust plead payment, or any matter in Discharge of the Action.”
Sec. 266
505 506
DEFENSIVE PLEADINGS Ch. 22
injury, when, etc., and says that the said supposed writing obligatory [or ‘indenture” or “articles of agreement,” according to the subject of the action] is not his deed. And of this he puts himself upon the country. STEPHEN, Princip]es of Pleading in Civil Actions 276, 277 (2d ed. by Andrews, Chicago, 1901). THE Plea of “Non Est Factum” in Covenant only puts the execution and validity of the deed in Issue in the same manner as in Debt on Specialty, and admits the same Proof only°4 Such a Plea is not a true General Issue, as it only puts the deed in Issue, and not the Breach of the Covenant. Most Defenses in Covenant must, therefore, be by Specific Traverse, or a Speciai Plea, when statutes do not provide otherwise. In this action, however, the defendant could give in evidence, under a Plea of “Non EstFactum,” that the deed declared on was delivered as an escrow, on a condition not performed; or that it was Void at Common Law ab initio, as being made by a married woman, or lunatic, and the like; or that it afterwards became Void by alteration, cancellation or erasure. Where, therefore, the defendant Pleads “Non Est Factum” to a Declaration, only the deed is placed in Issue, and all other Facts stand admitted by the defendant’s failure to Deny them by an appropriate Plea.°5 The Plea of “Non Est Factum” in Covenant, as developed at Common Law, is restricted in Scope when compared with the General Issue in Assumpsit, Case or Debt on Simple Contract, confining the Issue to 84. The Rules as to Pleas in Debt on Specialty are applicable also to Covenant. Illinois: City of Chicago v. English, 180 III. 476, 54 NE. 609 (1899); Goldstein v. Reynolds, 190 IR. 124, 60 NE. 65 (1901); Badainshi v. Ahlswede, 185 I]l.App. 513 (1914); New York: McNeish v. Stewart, 7 Cow. (N.Y.) 474 (1827); Cooper v. Watson, 10 Wend. (N.Y.) 205 (1833); Norman v. ~Vells, 17 \Vend. (N.Y.) 136 (1537); Kane V. Sanger, 14 Johns. (N.Y.) 50 (1817). 03. Marine Ins. Co. v. Hodgson, C Crancli (U.S.) 200, 3 LEd. 200 (1510). the Existence of the Deed in Fact and in Law, All Other Defenses being required to be Specially Pleaded,°6 Saunders 67 and Chitty ~ felt that the Plea lacked the requisites of a General Traverse, as it is so narrow in Scope. The reason for this characteristic of the Plea—its narrowness—may be traced to the fact that in ancient times there was no Defense to a Sealed Contract outside of its conditions, except such as had a logical tendency to show that it had not been executed, or that the cause had been released under seal. Thus, in the early period of the action, Fraud, Want of Consideration, and Release, unless under Seal, constituted No Defense. No Defense in Pais outside of Non-Performance of conditions, except Duress, would be entertained.69 In an Action on a Sealed Contract of Lease, if you sue in Covenant for the rent, the defendant must Plead to some Particular Allegation. The Defendant may plead Non Est Factum, yet that only puts the Execution or Validity of the deed in Issue, and not the Breach of the Covenant. If, however, you sue in Debt on the Lease, though it be Sealed, the defendant can Plead the General Issue of Nil Debet, as the Specialty is considered as but the Inducement to the action. In Actions of Debt on the Specialty itself, the General Issue is Non Est Factum, as in Covenant. Under Nil Debet, the defendant may not only put the plaintiff to the necessity of showing the existence of a legal contract, but he may give in evidence the Performance of it, or Matter in Excuse of Performance, or a Re 66. Martin, Civil Procedure at Common Law, c. XI, Defences In Bar by Way of Traverse, Art. II, General Traverse, § 261, Covenant, 221 (St. Paul, 1905)- 67. 1 Saunders, Law of Pleading and Evidence in Civil Actions, with Forms and the Pleading and Evidence, 393 (3rd Am. ed. Philadelphia, 1837). 63. 1 Chitty, Treatise on Pleading and Parties to A& tions with Precedents and Forms, c. VII, Of Pleas in Bar, 486 (12th Am. ed. springfield, 1855). 89. Ames, Farol Contracts Prior to Assulnpsit, S larv.L.Rev. 252 (1894). See. 268
PLEAS—PEREMPTORY OR IN BAR 507
lease, or Other Matter in Discharge. But, if plaintiff sues in Covenant, the defendant may be compelled to Plead his grounds of Defense Specially.78 PLEAS IN CONFESS1ON AND AVOIDANCE IN COVENANT 267. Matters showing that the Deed was merely Voidable, Not lToid, such as Duress, Fraud in the Inducement, Gaming, Infancy and Usury, were required to be Pleaded Specially. IT was an Inflexible Rule that in actions on deeds, Special Matters showing that the instrurnent was merely Voidable, Not Void, such as Duress, Fraud in the Inducement, Gaming, Infancy and Usury, were required to be Pleaded Specially,’1 when, in the course of time, they came to be recognized as Valid Defenses at Law.72 In referring to the late recognition of some Defenses, as Legal Defenses, Martin declares: “It may be proper to mention in this connection that under the Common Law, as prevailing down to very recent times, Fraud was no Defense at Law to an Action on a Sealed InstrumenW1 The same is true of the Defense 70. 1 Chitty, Treatise on Parties to Actions, Forms of Actions, and Pleading, 510, 517, 522 (6th Am. ed., Springfield, 1833), 71. A Special Plea coimnon to Coveiu, at is: “Non Infregit Conventionem”, covenant not broken, which denies the Breach, but not the Deed. It, therefore, is Dot the General Issue, but a Plea in Bar. New York; Roosevelt v. Pulton’s Heirs, 7 Cow. (N.Y.) 71 (1821); Vermont: Phelps v. Sawyer, 1 Aikens (Vt.) 150 (1826). “Covenants Performed” is proper if the Covenants sued on are in the Affirmatis-e. This cannot be supported by evidence showing excuse. Illinois: Radzinslri v. Ahlswede, 185 Ill.App. 513 (1914); Virginia: Cheuning v. Wilkinson, 95 Va. 667, 29 St. 680 (1898). 72. Martin, Civil Procedure at Common Law, c. XI, Defences In Bar by Way of Traverse. Art. II, General Traverse, § 261, Covenant, 221 (St. Paul, 1905). ~1. English: Wright v. Campbell, 2 F. & F. 393, 175 Eng.Rep. 1111 (1501); Missouri: Montgomery v. Tipton, I Mc. 446 (1824); Federal: George v. Tate, 102 U.S. 561, 26 LEO. 232 (1881); Ames, Parol Contracts Prior to Assumpsit, S Ilarv.L.Rev. 252 (1894)- of a Want or Failure of Consideration.74 Illegality, unless apparent on the face of the instrument, was likewise no Defense at Law prior to 176775 Neither was Payment, unaccompanied with Release under Seal, a Valid Defense in England until it was made so by Statute in 17O5~° To the General Rule of the Common Law prohibiting the Avoidance of Sealed Instruments by Defenses in Pais, there was an Exception in the Case of Duress, which was always, and still remains, a Valid Defense at Law; but which must be Affirmatively Pleaded; and is not admissible under the General Issue?’ ~ THE RILARY RULES—THEIR EFFECT UPON THE GENERAL ISSUE IN COVENANT 265. Under “Non Eat Factum” after the llilary Rules, only the Deed in Point of Fact was in Issue; all other Defenses were required to he Specially Pleaded. ALTHOUGH the Plea of “Non Est Facturn” in Covenant was originally of Limited Scope, as compared with the General Issue in some of the other Common Law Actions, such, for example, as Assumpsit or Case, tke effect of the Hilary Rules was to further restrict its effect. Thereafter, it operated as a Denial of the Execution of the Deed in Point of Fact Only,78 all other Defenses being required to be Pleaded Specially, including Matters which went to make the deed Absolutely Void, as well as those which made it Voidable, 74. English: Collins y. Blantern, 2 Wils.IC.B. 341, 95 Eng.Bep, 847 (1765); New York: Parker v. l’armlee, 20 Johns, (N.Y.) 130 (1822). Directory: lawschool lawschool -> Handong International Law School Admissions Essays I. Instructions lawschool -> Law School Materials for Success Barbara Glesner Fines Share with your friends:
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