White v. Converse & Phelps — 20 Wend. 266

Majority

p. 266

White and others vs. Converse & Phelps.

Headnote

Ml debet is not a good plea to a declaration in debt on recognizance ; the statute relative to notice of matter to be given in evidence oythe trial, to be served with the plea of nil debet, does not authorize that plea to be interposed in cases other than those in which before it was proper.

Demurrer to a plea of nil debet put in to a declaration in debt on recognizance of bail in this court.

A. Taber, for the plaintiffs,

in support of the demurrer, cited I Cowen, 670 ; 3 Wendell, 24.

M. T. Reynolds, for the defendants.

The plea is bad. It has been supposed by counsel that the language of the Revised Statutes in the section 2 R. S. 352, § 10, authorizing notice of matter intended to be proved on the trial to be given with the plea in certain cases, had changed the rule of pleading in allowing nil debet to be interposed in cases where heretofore it had not been permitted. This is a mistake. The language of the statute is “ whenever he,” the defendant, “shall plead nil debet to an action of debt on. judgment,” he may give notice, &c. The sole object of the statute in reference to this plea was to authorize notice of special matter to be given with the plea of nil debet in cases where such plea might before the statute have been put in according to the settled rules of pleading.

Judgment for plaintiffs.

END OF OCTOBER TERM.