Tappan v. Heath

16 N.H. 34

• Court: Superior Court of New Hampshire
• Decided: July 15, 1844
• Status: Published

Opinion

Woods, J.

To an action of debt upon a judgment the defendant has pleaded nil debet, to which the plaintiff' has demurred, and the question is, whether such a plea is any answer to the action. ■

The rule laid down in Williams’ Saunders, 1 Saund. 38, note 3, is perfectly decisive upon this point, and seems to be fully sustained by authorities. It is this: “ Where the specialty or record is but inducement to the action, and matter of fact is the foundation of it, nil debet is a good plea; as in debt for rent by indenture, or for an escape, or on -a devastavit, the indenture or judgment is but inducement, and the arrears of rent, the escape, and devastavit, are the foundations of the actions. But, on the other hand, where the action is grounded upon a record or specialty, nil debet is no plea.” In Warren v. Consett, 2 Ld. Raym., 1500, where the subject is discussed, it was held that nil debet was no plea in an action founded upon a deed, and the distinction taken in the note to Saunders was in general terms held to prevail. To the same effect is Bullis v. Giddons, 8 Johns. 82, where the rule from Saunders is cited. Thurber v. Blackbourne, 1 N. H. 242.

Indeed, this rule of pleading is so perfectly established, that it is not drawn in question in the argument. But it is said, that the statute abolishing special pleading has by implication and of necessity introduced a change. By section 3 of the 187th chapter of the Revised Statutes, it is provided, that “No special plea shall ever be required in any civil action, except a plea of title to real estate before justices of the peace. Either party may give in evidence any matter in support or defence of the action under the general issue, upon filing in court a brief statement thereof within such time as the court may order.” This is all that has been enacted upon the subject, and it seems unnecessary to do more than to recite the statute, to show that no such change as is suggested was intended to be introduced into the system of pleading.

To an action of debt on a domestic judgment, nil debet is not a proper plea more than is non assumpsit. How can the appending of a brief statement make it so ? The statute merely provides that a general plea shall be sufficient to put in issue matters that before required a special plea. It was no part of its design to permit a plea to be filed for such special purposes, that before the statute could not be filed in the action for any purposes whatever. This is the view that was taken in the case of Bullis v. Giddons, 8 Johns. 82, before referred to. That was an action of debt on a recognizance of bail. The plea was nil debet, under which a notice of payment was given, and it was held on demurrer that the plea was insufficient. The same point was decided in Allen v. Crawford, in Belknap county, December term, 1843.

We are, therefore, of the opinion that the plea in this case is bad, and that there must be

Judgment for the plaintiff on the demurrer.