Definition
Latin: "that he take nothing by his writ." A judgment entered against a plaintiff in a common law action when the defendant prevails, either on the merits (in bar) or on a procedural challenge (in abatement). The judgment declares that the plaintiff shall recover nothing through the writ by which the action was commenced, and that the defendant goes hence without day — that is, is dismissed from the proceeding without further obligation to appear.
The companion judgment, nihil capiat per billam ("that he take nothing by his bill"), applied when the plaintiff initiated proceedings by bill rather than by writ. The distinction tracked the form of originating process, not the substantive outcome.
Common Confusion
Nihil capiat per breve is sometimes loosely treated as synonymous with a general judgment for the defendant, but the phrase carries a precise procedural identity: it is the judgment form rendered when a writ-initiated action fails, as distinguished from nihil capiat per billam (bill-initiated proceedings). A defendant's judgment in abatement — which dismisses the action on procedural grounds — also takes this form, creating potential confusion with a judgment on the merits. In historical records, both outcomes appear under the same Latin formula; researchers must examine the underlying plea to determine whether the dismissal was substantive or procedural.
Why It Matters in Research
This term is almost exclusively a product of common law pleading practice and will surface primarily in pre-twentieth century case reports, plea rolls, and treatise literature. Researchers working in colonial American, early federal, or English common law records should expect to encounter it in the context of writ practice that has no direct modern analogue.
Several research traps are worth flagging. First, the formula appears in two variants — per breve and per billam — and conflating them obscures the procedural history of an action. When tracing early litigation records, the variant used identifies the originating process type. Second, because the same judgment form covers both abatement and bar outcomes, a bare reference to nihil capiat in a digest or abridgment does not tell the researcher whether the plaintiff's case failed for want of proper pleading or on the substance of the claim. Third, the phrase drops out of American practice as code pleading and then notice pleading displaced common law writ forms across the nineteenth and twentieth centuries. Post-reform sources will not use this terminology; researchers bridging pre- and post-reform case law must translate the concept rather than search for the phrase.
Within the Law Mind corpus, this term connects naturally to material on common law pleading, judgment forms, writ practice, and the historical structure of actions at law. It is a terminal event in the pleading sequence, so tracing it requires understanding what preceded it: declaration, plea, issue, and verdict or demurrer.
Historical Dictionary Support
Black's and Rapalje & Lawrence are in close agreement on the core definition and present no meaningful divergence. Both identify the phrase as the judgment form rendered against a losing plaintiff, both note the per billam variant for bill-initiated proceedings, and both flag that the judgment applies whether the defendant prevailed in bar or in abatement. Black's attribution to Co. Litt. 363 grounds the definition in Coke's authoritative treatment of common law pleading forms and is a reliable primary reference for researchers seeking doctrinal authority.
Neither source fully elaborates the practical consequences of the distinction between abatement and bar in connection with this judgment form — specifically, that a judgment in abatement did not necessarily preclude the plaintiff from recommencing the action by a properly formed writ, while a judgment in bar was final on the merits. That distinction, which is material to understanding whether nihil capiat ends a dispute or merely a defective proceeding, requires consultation of common law pleading treatises beyond these dictionary entries.
Both dictionaries append a cross-reference to the maxim nihil consensui tam contrarium est quam vis atque metus (Digest 50.17.116: "nothing is so opposed to consent as force and fear"), which is an unrelated civil law maxim on duress. The placement is alphabetical coincidence, not substantive connection to the judgment form.
Jurisdictional Note
Nihil capiat per breve is a common law pleading form with English origins, adopted into American colonial and early state court practice. Its use effectively ceased as American jurisdictions enacted field codes (beginning with New York in 1848) and later adopted rules-based civil procedure. Researchers working in English ecclesiastical or chancery records should note that bill practice was the dominant form in equity, making nihil capiat per billam the more likely variant in those proceedings.