Gallatin County IL Archives Court.....Poole, V Vanlandingham 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 28, 2008, 3:38 am

Source: Reports Of Cases Illinois
Written: 1819-31

DECEMBER TERM, 1822, VANDALIA.

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 
contracts.

A __ _ stating that the consideration has wholly failed, without saying 
wherein, is bad.

The ____ 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issue all the matter contained in the second plea which was withdrawn.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)

On 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 bad, 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 the 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., 9 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 erroneous. 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? 

(3) See note to Taylor v. Sprinkle, ante page 17.

(a) Vide Taylor v. Sprinkle, page 17. Cornelius v. Vanorsdall, page 23. 
Bradshaw v. Neuman, post.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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