The opinion of the court was delivered by
Bennett, J.
The first question presented for our consideration is, whether, in an action of debt upon a jail bond, nil debet is a good plea. When the plaintiff counts upon a deed only as inducement to the action, nil debet is a good plea. In an action of debt for rent, due on a deed of lease, the deed is but inducement. The subsequent occupation by the defendant under the demise is the.gist of the action. Rent is considered as a profit, which issues out of the land, and when sued for as a debt, it is considered, that the debt arises out of the receipt of the issues and profits by the defendant ; and not from the deed. The declaration, in fact, alleges the debt, as arising from the occupation of the premises; and the lease is mere matter of evidence. In such case it is quite clear, that nil debet is a good plea. 1 Saund 276 (n. 1.) It is equally well settled, that, wherever the action is founded on a deed, the deed must be declared upon ; and in such case the plea of nil debet is ill on general demurrer. 2 Wils. 10. 1 Chit. Pl. 478. 1 Saund. 38 n. 3. Warren v. Consett, 2 Ld. Raym. 1500. If the plea of nil debet were sufficient, it would, in practice, be quite inconvenient and expensive for the plaintiff. It would be necessary for him to come prepared to prove not only the execution of the bond, but also all those facts, which are necessary to give him a right of action. The defendant would also be allowed to avail himself of every special matter of defence, which he might have proved, under the same plea, in an action of debt on simple contract.
The present action is founded upon the bond ; though it was necessary for the plaintiff to state in his declaration other facts, to entitle himself to a recovery. The plaintiff could not declare for the escape and give the bond in evidence, but must declare upon the bond itself. Atty et al. v. Parish et al., 4 B. & P. 104. In Smith v. Whitehead, cited in Warren v. Consett, 2 Ld. Raym. 1503, it was expressly held, that, in an action of debt, brought by the as[245] ignee of the sheriff upon a bail bond, nil debct was not a good plea. That case was held to be a sufficient authority to govern the case of Warren v. Consett., In debt for an escape, the escape is the foundation of the action, and the judgment is merely inducement; and for this reason it has always .been held, that in such action nil debet is a good plea. The defendant’s first plea must, then, be held insufficient.
It will now be necessary to consider the defe ndants’ second plea. So long as Cleveland remained upon the liberties of the jail yard, without departing therefrom, there was no debt, or claim, arising from or out of the bond, which was proveable under the bankrupt act, either against Cleveland, or his bail. Until a breach of the condition there was, at most, but a mere contingent liability, which, considering the nature and object of the bond, and the regulations to which it was subject, was not within the meaning of the provision in the bankrupt law, allowing the proof of uncertain, or contingent, debts, claims, or demands. The bond is taken to the sheriff, and is assignable to the creditor upon condition broken, and not before, with all the privileges and advantages, in a suit thereon in his own name, which would belong to the sheriff in a suit brought by him. If the sheriff shall, on demand, assign the bond, the creditor can maintain no action against the sheriff for an escape, until he has sued the bond.
Though it may be true, that the judgment against Cleaveland, existing at the time of bankruptcy, might have been proveable under the commission, and that, if he had continued in jail, he might have been discharged upon an audita querela, after having obtained his certificate; and although, perhaps, if the certificate had been granted before any escape, he might have pleaded it in bar of an action on the bond, — though this might be at variance with the English practice in analogous cases, — still, in the present case the escape was committed, and the bond of course forfeited, before the certificate was obtained; and consequently the circumstance of the judgment against Cleaveland being proveable under the commission would not be material. A new right, a right of action on the bond, to recover the original debt, accrued immediately upon the escape, which, under our decisions, can not be purged by a recaption, or return.
[246] In the present case the decree of bankruptcy was prior to a breach of the bond, and of course it was not proveable; but suppose we consider the bond to have been proveable, as a contingent claim, before condition broken ; or suppose the breach had been prior to the bankruptcy, a certificate granted after the breach, and after the obligors had become liable on the bond, by reason of such breach, for the original debt, would discharge Cleaveland only, leaving his sureties liable. The bankrupt law expressly provided, “ that no discharge of any bankrupt should release, or discharge, any person, who may be liable as surety for or with the bankrupt.” In England it has often been decided, in the case of bail to the action, that, if the bail became fixed by a return of non est inventus before a discharge in bankruptcy of the principal, the bail remains liable, there being in England no absolute right of surrender, as there is here, at any time before judgment on the scire facias. In the case of bail upon a jail bond, the surety, after breach of the condition, is absolutely fixed with the payment of the debt. There exists in this state no right of surrender, nor can the bail be relieved by recaption, or return of the prisoner, before action brought. If, then, it could be established, that the second plea contained good matter in bar of the action as to Cleaveland, yet, he having joined with the other defendants in a plea that is insufficient for them, it is ill as to all. No principle of pleading is better established than this. The result is, that the second plea must be adjudged insufficient.
The defendants counsel have made some objections to the sufficiency of the plaintiffs declaration; but we cannot regard them as entitled to much weight.
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The opinion of the court was delivered by
Bennett, J.
The first question presented for our consideration is, whether, in an action of debt upon a jail bond, nil debet is a good plea. When the plaintiff counts upon a deed only as inducement to the action, nil debet is a good plea. In an action of debt for rent, due on a deed of lease, the deed is but inducement. The subsequent occupation by the defendant under the demise is the.gist of the action. Rent is considered as a profit, which issues out of the land, and when sued for as a debt, it is considered, that the debt arises out of the receipt of the issues and profits by the defendant ; and not from the deed. The declaration, in fact, alleges the debt, as arising from the occupation of the premises; and the lease is mere matter of evidence. In such case it is quite clear, that nil debet is a good plea. 1 Saund 276 (n. 1.) It is equally well settled, that, wherever the action is founded on a deed, the deed must be declared upon ; and in such case the plea of nil debet is ill on general demurrer. 2 Wils. 10. 1 Chit. Pl. 478. 1 Saund. 38 n. 3. Warren v. Consett, 2 Ld. Raym. 1500. If the plea of nil debet were sufficient, it would, in practice, be quite inconvenient and expensive for the plaintiff. It would be necessary for him to come prepared to prove not only the execution of the bond, but also all those facts, which are necessary to give him a right of action. The defendant would also be allowed to avail himself of every special matter of defence, which he might have proved, under the same plea, in an action of debt on simple contract.
The present action is founded upon the bond ; though it was necessary for the plaintiff to state in his declaration other facts, to entitle himself to a recovery. The plaintiff could not declare for the escape and give the bond in evidence, but must declare upon the bond itself. Atty et al. v. Parish et al., 4 B. & P. 104. In Smith v. Whitehead, cited in Warren v. Consett, 2 Ld. Raym. 1503, it was expressly held, that, in an action of debt, brought by the as[245] ignee of the sheriff upon a bail bond, nil debct was not a good plea. That case was held to be a sufficient authority to govern the case of Warren v. Consett., In debt for an escape, the escape is the foundation of the action, and the judgment is merely inducement; and for this reason it has always .been held, that in such action nil debet is a good plea. The defendant’s first plea must, then, be held insufficient.
It will now be necessary to consider the defe ndants’ second plea. So long as Cleveland remained upon the liberties of the jail yard, without departing therefrom, there was no debt, or claim, arising from or out of the bond, which was proveable under the bankrupt act, either against Cleveland, or his bail. Until a breach of the condition there was, at most, but a mere contingent liability, which, considering the nature and object of the bond, and the regulations to which it was subject, was not within the meaning of the provision in the bankrupt law, allowing the proof of uncertain, or contingent, debts, claims, or demands. The bond is taken to the sheriff, and is assignable to the creditor upon condition broken, and not before, with all the privileges and advantages, in a suit thereon in his own name, which would belong to the sheriff in a suit brought by him. If the sheriff shall, on demand, assign the bond, the creditor can maintain no action against the sheriff for an escape, until he has sued the bond.
Though it may be true, that the judgment against Cleaveland, existing at the time of bankruptcy, might have been proveable under the commission, and that, if he had continued in jail, he might have been discharged upon an audita querela, after having obtained his certificate; and although, perhaps, if the certificate had been granted before any escape, he might have pleaded it in bar of an action on the bond, — though this might be at variance with the English practice in analogous cases, — still, in the present case the escape was committed, and the bond of course forfeited, before the certificate was obtained; and consequently the circumstance of the judgment against Cleaveland being proveable under the commission would not be material. A new right, a right of action on the bond, to recover the original debt, accrued immediately upon the escape, which, under our decisions, can not be purged by a recaption, or return.
[246] In the present case the decree of bankruptcy was prior to a breach of the bond, and of course it was not proveable; but suppose we consider the bond to have been proveable, as a contingent claim, before condition broken ; or suppose the breach had been prior to the bankruptcy, a certificate granted after the breach, and after the obligors had become liable on the bond, by reason of such breach, for the original debt, would discharge Cleaveland only, leaving his sureties liable. The bankrupt law expressly provided, “ that no discharge of any bankrupt should release, or discharge, any person, who may be liable as surety for or with the bankrupt.” In England it has often been decided, in the case of bail to the action, that, if the bail became fixed by a return of non est inventus before a discharge in bankruptcy of the principal, the bail remains liable, there being in England no absolute right of surrender, as there is here, at any time before judgment on the scire facias. In the case of bail upon a jail bond, the surety, after breach of the condition, is absolutely fixed with the payment of the debt. There exists in this state no right of surrender, nor can the bail be relieved by recaption, or return of the prisoner, before action brought. If, then, it could be established, that the second plea contained good matter in bar of the action as to Cleaveland, yet, he having joined with the other defendants in a plea that is insufficient for them, it is ill as to all. No principle of pleading is better established than this. The result is, that the second plea must be adjudged insufficient.
The defendants counsel have made some objections to the sufficiency of the plaintiffs declaration; but we cannot regard them as entitled to much weight.
It is said, that the execution, upon which the commitment was made, was not addressed to any legal officer. But it is averred in the declaration, that the execution issued on the judgment in due form of law, and that it was delivered to the sheriff to levy, serve and return according to law, and that for the want of goods and estate of said Cleaveland, whereon to levy, the sheriff, by virtue of said writ of execution, and according to the precept thereof, arrested the body, &c. Here, then, is a direct averment, that the arrest was made by virtue of the execution and according to the precept thereof. This necessarily implies, that the execution was directed to the sheriff who executed it. But if it was not so, and the officer who [247] served it had no authority in fact to execute it, it might well be inquired, this not appearing upon the face of the declaration, whether the bond must not be avoided by a plea of duress of imprisonment. It is also said, that there is no command to the keeper of the jail to keep the debtor, Cleaveland. The declaration avers, that the sheriff arrested and took the body of Cleaveland and him committed to the jail of said county, within the said prison, until he should pay and satisfy to the plaintiff his damages and costs, as hy said writ he was commanded. The debtor having been duly committed for the nonpayment of the execution, the law makes it the duty of the jailer to keep the prisoner in custody until legally discharged; and surely it can be no objection to this declaration, that it is not expressly averred in it, that the writ of execution contained within it a direction to the jailer to keep the prisoner, &c.
The objection, that the condition of the bond makes Cleaveland a prisoner for the damages and costs and the officer’s fees on the execution, is entitled to no weight. This is not annexing any thing more than what the debtor is bound to pay, and what is provided for by the statute, and does not render the bond illegal. The result is, the judgment of the county court is affirmed.