18 Vt. 241 | Vt. | 1846
The opinion of the court was delivered by
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
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.
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
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.