NON EST FACTUM IN DEBT OR COVENANT.

213

which, under the circumstances supposed, would be perfectly true. Where, indeed, a party had authorised the drawer of a bill to accept it generally in his name, and the drawer had affixed an acceptance payable at a particular place, such party was permitted, when an action was subsequently brought against him by the indorsee, to rest his defence on a traverse of the acceptance, because in this case the Court considered that the bill had never existed as an accepted bill, otherwise than as a bill payable at a particular place, and the defendant never did accept such a bill (z). So, if a defendant gives his acceptance in blank, and consents that the plaintiff shall draw thereon a bill at two months, but the plaintiff, in violation of the purpose contemplated, draws a bill at one month, the defendant may repudiate the bill under a plea of non accepit (a); and where partners are sued as the acceptors of a bill, one of them, under a plea denying his acceptance, will be entitled to show that, within the knowledge of the plaintiff (b), the name of the firm was fraudulently used by his co-partner, who had no authority to accept the bill for partnership purposes (c).

§ 214. "In debt on specialty or covenant, the plea of non est factum shall operate as a denial of the execution of the deed in point of fact only; and all other defences shall be specially pleaded, including matters which make the deed absolutely void, as well as those which make it voidable" (d). It may be observed with reference to this rule, that if the plaintiff makes profert of the instrument, he must, under a plea of non est factum, produce and prove it at the trial, and cannot show that it has been destroyed, and give secondary evidence of its contents (e). The omission of any plea of non est factum, while it admits so much of the deed as is expanded on the record, has no larger effect; and consequently, if

(*) Crotty v. Hodges, 4 M. & Gr. 561; 5 Scott, N. R. 221, S. C.

(a) Fisher v. Wood, 1 Dowl. N. S. 54.

(b) The plaintiff's knowledge of the fraud must be proved by the defendant, who cannot rely on the existence of the fraud, and then call upon the plaintiff to prove the circumstances under which the bill was indorsed to him. Musgrave . Drake, 5 Q. B. 185.

(c) Jones v. Corbett, 2 Q. B. 828.

(d) Reg. Gen. H. T. 4 Will. 4, Plead. in Par. Act., II. In Covenant and Debt, 5 B. & Ad. viii.

(e) Smith v. Woodward, 4 East, 585.

214

DEBT ON AWARD-DEBT ON SIMPLE CONTRACT.

the plaintiff would avail himself of any part of the instrument not specified in the declaration, he must call the attesting witness, and prove the deed in the usual way (f). Thus if, in debt on bond, conditioned for the performance of an award, or of covenants in an indenture, or of articles of agreement, or the like, the defendant lets judgment go by default, and the plaintiff, having omitted to set out the condition of the bond in the declaration, suggests breaches on the roll, he must prove, not only the condition of the bond, the award, indenture or articles, and the breaches suggested, but also that the bond mentioned in the suggestion, and produced to the jury, is that on which the action is brought (g).

§ 215. In debt on an award, the plea of “no award," means no valid award; and although on an issue raised on such plea, the plaintiff will make out a primâ facie case by proving the award, and producing the rule of reference, the defendant will be entitled to show that the arbitrator has not decided all the issues in the cause referred to him, or has otherwise not complied with the terms of the reference (h).

§ 216. "The plea of nil debet' shall not be allowed in any action. In actions of debt on simple contract, other than on bills of exchange and promissory notes, the defendant may plead that 'he never was indebted in manner and form as in the declaration alleged,' and such plea shall have the same operation as the plea of non assumpsit in indebitatus assumpsit; and all matters in confession and avoidance shall be pleaded specially, as above directed in actions of assumpsit. In other actions of debt, in which the plea of nil debet has been hitherto allowed, including those on bills of exchange and promissory notes, the defendant shall deny specifically some particular matter of fact alleged in the declaration, or plead specially in confession and avoidance" (i).

(f) Williams v. Sills, 2 Camp. 519, per Lord Ellenborough; Gillett v. Abbott, 7 A. & E. 783, 786; 3 N. & P. 24, S. C.

(g) Hodskinson v. Marsden, 2 Camp. 121, per Lord Ellenborough; Edwards v. Stone, cited 1 Saund. R. 58 f.

(h) Gisborne v. Hart, 5 M. & W. 50; Fisher v. Pimbley, 11 East, 193, per Bayley, J.; Dresser v. Stansfield, 14 M. & W. 822.

(i) Reg. Gen. H. T. 4 Will. 4, Plead in Par. Act,, II. In Covenant and Debt, 5 B. & Ad. viii.

The cases cited above, while treating of the action of assumpsit, will, for the most part, sufficiently illustrate the operation of these rules; but it may be here added, that in actions of debt for the amount of calls upon railway shares, the plea of never indebted would seem to put in issue all the matters required by the special act to be proved by the plaintiffs (j). As the new rules do not apply to replications, a plaintiff may still, in answering a plea of set-off, reply that he was not nor is indebted to the defendant, and under such replication may prove payment, though such proof would be inadmissible on a replication that the plaintiff never was indebted in manner and form as in the plea alleged (k).

§ 217. "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 defence than such denial shall be admissible under that plea" (1). The word "detain," as used in a declaration in detinue, means that the defendant withholds the goods, and prevents the plaintiff from having the possession of them; and the plea of non detinet consequently puts in issue an active or adverse detention (m). But this plea puts in issue no other fact (n); and no question can be raised under it, as to whether the detention be lawful or unlawful. If, therefore, the defendant has any right to detain the goods in question, arising out of a joint interest with the plaintiff, a lien, a pledge for money unpaid, or the like, he must plead such right specially on the record (o). Neither can he avail himself of any of such defences under a plea of not possessed (p), because

(j) Edinburgh and Leith Rail. Co. v. Hebblewhite, 6 M. & W. 707; 8 Dowl. 802, S. C.; Aylesbury Rail. Co. v. Mount, 7 M. & Gr. 898. See ante, § 210. (k) Stockbridge v. Sussams, 3 Q. B. 239; Brown v. Daubeny, 4 Dowl. 585; Jackson v. Robinson, 8 Dowl. 622. See errata at beginning of same vol.

(7) Reg. Gen. H. T. 4 Will. 4, Plead. in Par. Act., III. Detinue, 5 B. & Ad. ix. (m) Clements v. Flight, 16 M. & W. 42, 49; 4 Dowl. & L. 261, S.C. In a declaration in detinue the allegation of bailment, whether general or special, is mere surplusage, and not traversable. Id.

(n) Jones v. Dowle, 9 M. & W. 19; Whitehead v. Harrison, 6 Q. B. 429, 431. (0) Mason v. Farnell, 12 M. & W. 674; Richards v. Frankum, 6 M. & W. 420 ; Barnewall v. Williams, 7 M. & Gr. 403; 8 Scott, N. R. 120, S. C. In this last case, a plea of lien was added to pleas of non detinet and not possessed.

(p) Mason v. Farnell, 12 M. & W. 674, 683, 684, overruling Lane v. Tewson, 12 A. & E. 116 (n) ; 1 G. & D. 584, S. C. See also Barnewall v. Williams, 8 Scott, N. R. 120; 7 M. & Gr. 403, S. C.

216

NOT GUILTY IN ACTIONS ON THE CASE.

this plea merely raises the question, whether the plaintiff has such a property in the goods as will enable him to maintain his action, and this he may have, though he is only entitled to a share of the goods (p), or has no right to the immediate possession (q). So, under a plea denying that the goods are the property of the plaintiff, the defendant cannot object that there are other persons, co-tenants with the plaintiff, who are not joined in the action (r).

§ 218. "In actions on the case, the plea of not guilty shall operate as a denial only of the breach of duty, or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement; and no other defence than such denial shall be admissible under that plea: all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration. Ex. gr. In an action on the case for a nuisance to the occupation of a house, by carrying on an offensive trade, the plea of not guilty will operate as a denial only, that the defendant carried on the alleged trade in such a way as to be a nuisance to the occupation of the house, and will not operate as a denial of the plaintiff's occupation of the house. In an action on the case for obstructing a right of way, such plea will operate as a denial of the obstruction only, and not the plaintiff's right of way (s). * In an action of slander of the plaintiff, in his office, profession, or trade, the plea of not guilty will operate to the same extent precisely as at present, in denial of speaking the words, of speaking them maliciously, and in the sense imputed, and with reference to the plaintiff's office, profession, or trade; but it will not operate as a denial of the fact of the plaintiff holding the office, or being of the profession or trade alleged. In actions for an escape, it will operate as a denial of the neglect or default of the sheriff or his officers, but not of the debt, judgment, or preliminary proceedings. In this form of action against a carrier, the plea of not guilty will operate as a denial of the loss or damage, but not of the receipt of

(p) Broadbent v. Ledward, 11 A. & E. 209; 3 P. & D. 45, S. C.

(2) Co. Lit. 283 a, cited and explained 12 M. & W. 683, 684.

(r) Broadbent v. Ledward, 11 A. & E. 209; 3 P. & D. 45, S. C. See ante, § 211, as to this rule.

(s) The example in trover is here omitted, as requiring a separate discussion. See post, §§ 226, 227.

NOT GUILTY IN ACTIONS ON THE CASE.

217

the goods by the defendant as a carrier for hire, or of the purpose for which they were received" (t).

§ 219. In considering the effect of the plea of not guilty as an admission of the facts stated by way of inducement, it matters not in what part of the declaration these facts are introduced. By the term inducement is meant that part of a declaration which contains a statement of the facts out of which the charge arises, or which are necessary or useful to make that charge intelligible (u). In short, it includes all the allegations, which do not involve the special charge alleged against the defendant (v); and although it is usual with good pleaders to introduce these facts as a preliminary statement, since by so doing the whole charge is rendered more perspicuous, yet, the pleading will be equally good in law, and the plea of not guilty will have precisely the same operation, though the inducement be inserted at the very end of the declaration, or be interwoven, by way of parenthesis, with the charge itself (w); for it will then, as Mr. Baron Parke expressed it, "be simply inducement put in the wrong place" (x).

§ 220. In accordance with the examples given by the judges in the rule as above stated, it has been held, that, in an action on the case for diverting water, the plea of not guilty puts in issue only the fact of the diversion, and admits the plaintiff's right to the use of the stream as described in the declaration (y). So, in case against a carrier for not safely conveying goods, the defendant, under the plea of not guilty, cannot set up that the damage was occasioned by the plaintiff himself, either by misrepresenting the weight of the goods, or by unskilfully packing them in the defendant's van; but if he relies on these facts as a defence, he must plead that he was induced by the plaintiff's misrepresentation

(t) Reg. Gen. H. T. 4 Will. 4, Plead. in Par. Act., IV. In Case, 5 B. & Ad. ix. (u) Per Tindal, C. J., in Taverner v. Little, 5 Bing. N. C. 685; per Lord Abinger, in Wright v. Lainson, 2 M. & W. 744.

(v) Wright v. Lainson, 2 M. & W. 748.

(w) Per Lord Abinger, in Dunford v. Trattles, 12 M. & W. 534; Torrence v. Gibbins, 5 Q. B. 297. (x) Lewis v. Alcock, 3 M. & W. 190.

(y) Frankum v. Earl of Falmouth, 2 A. & E. 452; 4 N. & M. 330; 6 C. & P. 529, S. C. See Ward v. Robins, 15 M. & W. 237.