Definition
A special traverse in the common law action of trover, by which a defendant denies being in possession of the chattel at the time the action was brought. The plea does not deny that a conversion occurred; it asserts only that the defendant no longer held the goods when the plaintiff commenced suit. Because the right to bring trover depended on the defendant's possession at the relevant time, this plea, if sustained, could defeat the action on procedural grounds without reaching the merits of the conversion claim.
Common Confusion
NOT POSSESSED should not be confused with a general denial of conversion, nor with a plea of not guilty. A general denial contests whether the defendant ever converted the chattel. NOT POSSESSED is narrower and more technical: it admits, by implication, that the defendant may have had the goods at some point, but contests possession specifically at the moment the writ issued. The distinction mattered because trover's procedural requirements tied liability in part to the defendant's possession at the time of suit. A researcher encountering this plea in historical pleading records should resist reading it as a full denial of wrongdoing.
Why It Matters in Research
This term is a creature of the abolished common law pleading system and will appear almost exclusively in historical records — court rolls, plea books, and early American and English case reporters predating the shift to code pleading in the nineteenth century. Researchers working in pre-civil-procedure materials need to understand that NOT POSSESSED is a term of art belonging to the formal architecture of common law special pleading, not a plain-language denial.
Several traps await the historical researcher. First, the plea's effect was procedural, not substantive: finding a judgment on NOT POSSESSED in the record tells you the action failed at the pleading stage, not that no conversion actually occurred. Second, Bouvier flags that under the Judicature Act 1875 this plea would likely have been characterized as "evasive," meaning the plea itself became disfavored and potentially strikeable in the late nineteenth century — an important marker for dating the records in which it might legitimately appear. Third, because NOT POSSESSED operates specifically in trover, any document using this phrase in a different action context deserves heightened scrutiny; it may reflect a pleading error or an attempt to adapt the form to another cause of action.
For corpus researchers, this term surfaces in pleading manuals, precedent books, and early common law reporters far more than in judicial opinions analyzing its merits. It is worth tracing alongside companion pleading terms such as TRAVERSE, NON DETINET, and CONVERSION to map the procedural landscape of trover actions in a given period or jurisdiction.
Historical Dictionary Support
Black's 1st and 2nd editions are identical in their treatment, defining NOT POSSESSED as a special traverse alleging defendant was not possessed at the time of action brought. Neither edition elaborates on the plea's strategic use, its interaction with the general issue, or its fate under reform-era procedure.
Bouvier adds meaningful texture. He situates the plea explicitly within trover practice, specifies that it responds to circumstances where the defendant was not possessed at the commencement of the action, and — crucially — notes its vulnerability under the Judicature Act 1875 as potentially evasive under Order XIX, rule 22. This is the only source among the three that signals the plea's decline and gives a practitioner's warning about its reception in the reform-era courts. Bouvier's references to M. & G. (Manning and Granger's reports) and McKelvey on Pleading provide pathways into the English and American pleading literature, though researchers should verify those citations against available reporters directly.
All three sources agree on the core function. None addresses the plea's use in American jurisdictions specifically, and none traces what happened to the defense once code pleading displaced the common law forms. That silence is informative: by the time these dictionaries were compiled, the plea was largely a historical artifact even in England.
Jurisdictional Note
NOT POSSESSED belongs to the common law pleading tradition shared by England and the American states before code pleading reforms. In the United States, most states abolished the common law forms of action through Field Code adoption beginning in the mid-nineteenth century, after which this plea had no procedural home. English courts similarly marginalized the plea after the Judicature Acts. Researchers should treat any appearance of NOT POSSESSED in post-reform American or English records as anomalous.