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Meyer M'Clean

2 Johns. 183 Court N.Y. Sup. Ct. English

Contents

Majority

p. 182
Meyer against M’Clean, survivor, &c.
Fisk, for the plaintiff,

Headnote

moved in arrest of judgment in this cause, on the ground, that the plea of nil debet to an action of debt on a judgment was a nullity. He contended, that by going to trial, the defendant had not affirmed the plea; that -mil tiel record was the only general issue, and the statute expressly required the general issue to be pleaded.
L. Elmendorf and Van Vechlen, contra.
The statute allowing special matter to be given in evidence under the general issue, was for the purpose of avoiding special pleading. The notice is iu place of the special plea, and is the substantial matter. The general issue is merely for form. Having received notice, there can be no pretence of surprise. If the plea be not strictly proper, according to the English rules, still, after the party has consented to go to trial, he must be considered as having waived all objection to the plea. There has been a fair trial and a verdict on the merits, and will the court now arrest the judgment on a point of form P
Where the defendant pleaded nil debet to an action of debt, on a judgment, and gave Dotice of specialmatter to be offered in evidence, and tbe plain tiff went to trial on this plea, it was held, that he could notafterwards arrest the judgment on the ground, that the plea was a nullity. Q,uere,wheth it is not a sufficient general issue under the statute.

Without deciding whether nil debet might or might not be pleaded for form’s sake, and as an issue to the country, for the purpose merely of upholding notices of payment, and thus secured to a person sued on a judgment of one of our own courts, the benefits intended by the statue to facilitate pleading,[2] we are all of opinion,

* Seevol. 1. p. 509, S. C.

p. 183
that the plaintiff having treated this plea in the present case as a legal plea, and having gone to trial upon it, he cannot now allege any thing against it, and is concluded by his own acts. This decision is analogous to that of Rush v. Cobbet, decided here in January terra, 1801. Bush sued on a judgment obtained in Pennsylvania, and the defendant pleaded nil debet and payment. On the trial tho plaintiff offered no proof of the judgment, concluding that the plea of nil debet admitted it. The court held, that the plaintiff was hound to make out his case by proving the judgment; and that whether nil debet was a good plea or not, the plaintiff having gone to trial upon it, was concluded from objecting to it. This decision took place before it had been held that such a judgment could be impeached, and is therefore applicable to this case. The plaintiff must take nothing by his motion.

Judgment for the plaintiff

Footnotes

  1. * Laws of N. Y. Vol. 2. p. 346.