#### Joseph R. G. Poole, Appellant, v. Oliver C. Vanlandingham, Appellee.

APPEAL FROM GALLATIN.

The plea of nil debet is a good, plea to all actions of debt upon all simple con" tracts.

A plea stating that the consideration has wholly failed, without saying wherein, is • bad.

The plea of “ no consideration” is given by statute, and throws the onus upon the plaintiff.

Opinion of the Court by

Justice John Reynolds.

This was an action of debt, to which there were seven pleas; the five last were demurred to, and the demurrer sustained, and to reverse that opinion this appeal is prosecuted. The 3d plea states that the note in this case was given without any good or valuable consideration. 4th plea alledged that the consideration had wholly failed. 5th plea is a plea of nil debet. 6th plea stated that $500 were paid in discharge of the debt of $700. 7th plea states that said Poole never received any consideration from any person named in said note. The 6th plea of nil debet is a good plea. This is a good plea to all simple contract debts; it will put in issue all the matter contained in the second plea which was withdrawn. (1) On this ground therefore, if no other, the judgment must be reversed, and the case remanded to the court below, so the plaintiff may withdraw his demurrer and take issue on said plea of nil debet. Yet as there are other pleas, on which the demurrer is taken, it will perhaps be right to give some opinion on them. The 3d and 7th pleas contain the same matter, to wit: that there was not given nor received any good or valuable consideration for said note. The statute law of this state gives rise to these pleas, which show a kind of negative defense to the action, and such matter of which the plaintiff must take the affirmation; therefore there can be no necessity, although urged to the contrary, for the defendant to show in what manner the consideration was not given by one party, or received by the other,—in reality a negative can not be shown or proven. (2)

*48On these pleas-it is necessary for the plaintiff to go on and allege in what manner the consideration was given and received.

Therefore those pleas are good. The 4th plea is certainly had, as it is necessary for the defendant, when the consideration is alleged to have failed, to show in what manner it has failed. This allegation ought to have stated with as much precision, as the allegations in a declaration are set out. For this reason, the demurrer to this plea ought to be sustained. (3) The fifth plea is a kind of plea of accord and satisfaction ; it is surely a novel one, yet I think it a good plea under our statute. The judgment of the court below ought to be reversed, and the case remanded to be proceeded on as above stated,—the costs to abide the event of the suit.

The judgment is reversed on the above grounds, except as to the pleas of the want of consideration ; on these the court is divided—therefore as to these the judgment is affirmed, (a)

Judgment reversed.

(1)

In a suit where a bond is the gist of the action, nil debet is not a good plea; but where it is inducement merely, it is a good plea. Davis v. Burton et al, 3 Scam., 41. King v. Ramsay, 13 Ill., 622.

(2)

It is said this is overruled by the cases of Stacker et al. v. Watson, 1 Scam., 207; Vanlandingham, v. Ryan, 17 Ill., 25; Topper v. Snow, 20 Ill., 434; and if it was meant by the court to say that the plaintiff must take the affirmative in proving that there was a consideration, then there can be no question but that it was *48erroneous. But such I apprehend was not their intention. They were passing only on the question of the sufficiency of the pleadings ; and when confined to that it is not readily seen that there is any error in the opinion. Suppose a note to be given without any pretense or show of consideration, how could a defendant do more than aver that it was given without any consideration f

(3)

See note to Taylor v. Sprinkle, ante page 17.

(a)

Vide Taylor v. Sprinkle, page 17. Cornelius v. Vanorsdall, page 23. Bradshaw v. Newman, post.