Eakle v. Oliver

5 Blackf. 3, 1838 Ind. LEXIS 2

Opinion

Sullivan, J.

This is an action of debt on a bond for the

delivery of certain property levied on by a constable in Marion ^pounty. The defendants pleaded nil debent. The plaintiff moved to reject the plea, to which the defendants objected; but the Court sustained the motion and rejected the plea. Final judgment was rendered for the plaintiff.

The plea of nil debet is not a good plea in debt where a deed is the foundation of the action. It is not however a nullity. It is adapted to the nature of the action, and goes to the substance of it. If the plaintiff take issue upon it, the defendant may prove any special matter of defence under it, which he might prove under the same plea in debt on simple contract. To avoid the plea in an action founded on a bond, the plaintiff must demur, and rely upon the conclusion of law, that the defendant is estopped by his deed from saying that he is not indebted. Coppin v. Carter, 1 T. R. 462.—Thellusson v. Smith, 5 T. R. 152.—3 Ch. G. P. 752.—Gould’s Pl. 310.—1 Ch. Pl. 552.-2 Ch. Rep. 239-Baily v. Edwards, Cas. Temp. Hardw. 179

(1).

In the progress of this cause, other exceptions were taken by the defendants, but we think they cannot be sustained.

For the reason given, the judgment of the Circuit Court must be reversed.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the plea set aside, with costs. Cause remanded, &c.

Trimble v. The State, Vol. 4 of these Rep. 435 and note.—Love v. Kidwell, Idem, 553.

If the plea be not adapted to the nature of the action, as nil debet in assumpsit, or 'non-assumpsit in debt, the plaintiff may treat it as a nullity, and sign judgment. But the plea of not guilty in debt on a penal statute, is not such a nullity as will warrant the plaintiff in signing judgment; nor is the plea of nil debet, in an action of debt on a judgment, a nullity. Where the plea, though informal, goes 'to the substance of the action, as nil debet to debt on bond, the plaintiff should demur, and not sign judgment. 1 Chitt. Plead. 552.