Glynn, Bart. and Others against Thorpe
| Jurisdiction | England & Wales |
| Judgment Date | 18 November 1817 |
| Date | 18 November 1817 |
| Court | Court of the King's Bench |
English Reports Citation: 106 E.R. 57
IN THE COURT OF KING'S BENCH.
g-lynn, bart. and others against thorpe. Tuesday, Nov. 18th, 1817. A recognizance is not a record until it is enrolled, and therefore where defendant pleaded to assumpsit on bills of exchange, &c. that the plaintiff was indebted to him by virtue of a recognizance taken in the Court of Exchequer, which was still in force, as by the said recognizance remaining in the said Court before the Barons will appear, without stating that it was enrolled: a replication, that the plaintiff was not so indebted, concluding to the country, was held good, on special demurrer, inasmuch as the plea did not state a debt due by recognizance, which was matter of record. The declaration contained two counts by the plaintiff, as indorsee, against the defendant, as acceptor of two bills of exchange : counts for money paid, money [154] had and received, and upon an account stated. The defendant pleaded, as to the first and second counts of the declaration, that the drawer did not make the said bills of exchange, in the said first count respectively mentioned, as it was alleged; and secondly, as a further plea to the other counts of the declaration, that the plaintiffs, at the time of the commencement of the suit, were indebted to the defendant upon a certain recognizance, the said plaintiffs having in Hilary term, in the 57th of the King, come into the Court of Exchequer, and acknowledged themselves to owe to the defendant the sum of 6001., which they consented should be made of their lands, &c.; and which said recognizance is still in full force, not satisfied; as by the said recognizance, in the said Court of our said lord the King, before the said Barons of the Exchequer, remaining, will fully appear; which sum of money exceeds the damages sustained by the plaintiffs: out of which sum defendant is willing to set off, &c. Replication after joining issue on the first plea, that they are not indebted to the defendant as in that plea alleged, and this they prayed might be inquired of by the country. Demurrer, assigning for cause, that though the plea stated the recognizance, which was matter of record, yet the plaintiffs had not answered the same, but had pleaded that they were not indebted, and that they ought to have pleaded nul tiel record, and not nil debet; and that the plaintiffs had attempted to try matter of record by a jury, and that they should not have concluded...
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