majority">Breese, J.

The pleadings in the case are quite voluminous, but the controversy arising upon them can be properly narrowed down to the consideration of the sufficiency of the eighth and twentieth pleas.

The eighth plea has been decided by this court to be good. Vanlandingham v. Ryan, 17 Ill. 27.

It avers, in substance, that both the notes sued on were executed by the defendant upon his subscription to the capital stock of the Bank of Illinois, and for no other purpose or consideration, and says that said notes were and are what are called “ stock notes ” of said bank, and avers that at the time of the commencement of this suit, there were no debts or causes of action existing against the president, directors and company of the said Bank of Illinois, nor against the assignees thereof; concluding with a verification.

The first replication to this plea is as follows:

The plaintiff says that true it is, that both of said promissory notes, in the declaration mentioned, were executed by said O. C. Vanlandingham upon his subscription to the capital stock of said bank, and that said notes were and are what are called and denominated “ stock notes” of said bank, yet it is not true that at the time of the commencement of this suit, there were no debts or causes of action existing against the president, directors, etc., of said Bank of Illinois, nor against the assignees thereof, as in said plea is alleged, and of this he prays an inquiry by the country.

We think the demurrer was properly sustained to this replication, for the reason that it attempts to throw upon the defendant the proof of a negative, and seeks to traverse a negative by a negative, which is hot legitimate pleading. A traverse should always be upon some affirmative matter, and not seek to put in issue a negative allegation. 1 Ch. Pl. 613.

The facts are presumed to be within the knowledge of the plaintiff, and he should have replied specially, that there were existing liabilities and indebtedness on the part of the bank rendering it necessary to collect these stock notes.

These requirements are met by the second replication, to which there were three separate rejoinders, without any special leave of the court, as the statute requires. This, of itself, would dispose of all but the first rejoinder, for the others being filed without leave, are as if never filed, and not properly before the court. The plaintiff’s demurrer to these rejoinders, however, having been entertained by the court, we will consider that as affirming the right to file them, and as equivalent to special leave. The demurrer to all the rejoinders was overruled. We think it should have been sustained to the second and third, for the reason that the second rejoinder does not go far enough, nor answer the last allegation in the replication that the interests of the creditors of the bank required the collection of the stock notes. And the third is defective, as it is not responsive to any allegation in the replication, and does not fortify and sustain the plea. Nor does it follow, because there were five hundred thousand dollars of stock notes due, it was not necessary to sue and recover a judgment upon the notes in suit.

The twentieth plea we deem bad, for the reason that no defense to this action could be made of the simple fact that the notes were stock notes. Something more should be alleged to bring the case within the ninth section of the act of 1845. Acts of 1844-5, page 246.

The demurrer to the replication to this plea should have been carried back to the plea and sustained as to the plea, as it presents no sufficient defense.

The judgment is reversed, and the cause remanded.

Judgment reversed.

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