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The Effect of General Issues


THE EFFECT OF GENERAL ISSUES. The general issue of non est faettlin denies that the deed mentioned in the declaration is the deed of the defendant. 'Under this traverse, the defendant, at the trial, may contend, either that he never executed such deed as alleged, or that the alleged deed is absolutely void in law. But mat ters which make it voidable only, as infancy and duress, must be specially pleaded.

Nil debet, as a traverse, is much broader than non est factuni: It is adapted to any kind of defense that denies an existing debt. This includes not only a de nial of the sale and delivery of goods, etc., but also release, satisfaction, arbitrament, etc., and in fact al most all matters of defense to an action of debt.

Non detinct says that the defendant "does not de tain the said goods", etc., the said goods being speci fied as the goods "of the plaintiff." Under it, there fore, the defendant denies either the detention charged, or else the plaintiff's property in the goods in question.

In the action of trespass upon the person not guilty amounts only to a denial of the trespass alleged, and does not permit any excuse of the trespass. Sue mat ter in excuse must be specially pleaded. In trespass quare clausum fregit, it may deny the breaking and entering, or the plaintiff's possession. In trespass de bolas, it denies the taking and also the ownership or possession of the goods.

So far the effects of the general issue is consistent with the form and principle of these pleas, but in the general issues in trespass on the case in promises (as sumpsit), and trespass on the case in general, the effect of the general issue is much broader. It will be re membered that the action of assumpsit first grew up in its general form, where the promise is implied; here where the promise might be shown by implication, it was considered only fair that the defense be treated with equal liberality, hence the defendant, under his plea of was at liberty to show any cir cumstance tending to disprove the debt or liability al leged. By gradual relaxation, this liberality was ex tended to special assumpsit also, so that under non-as sum p sit the defendant is permitted to show any matter of defense except tender, bankruptcy, statute of limi tations, discharge under the insolvency acts, set off, and defenses under the court of conscience acts. But set off may be shown if notice of it be given with the plea. A similar relaxation exists with regard to the plea of not guilty, in the case of trespass on the case in general. But the statute of limitations, the truth of the statement alleged to be libelous, and the retaking upon fresh pursuit in an action for escape, must all be spe cially pleaded.

But even in the case of matters in confession and avoidance that may be shown under the general issue, the defendant may, if he so desires, plead them spe cially. The chief advantage of pleading specially is that it compels the plaintiff to reply, in doing which he is confined to a single answer. This often puts him to a great disadvantage, for he may have several answers to the defendant's case, and where the general issue is pleaded, may avail himself of them all.

The general issue of non cepit applies where the defendant has not in fact taken the goods in question, or where .he did not take them or have them in the place alleged ; but singularly enough, it does not deny the plaintiff's property in the goods.

trespass, defendant, issue, alleged and deed