Warren against Consett
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 88 E.R. 231
IN THE KING'S BENCH.
case 244. warren against consett. "Nil debet" is no good plea to an action of debt on a penalty.-S. C. ante, 10G. S. G.post, 382. S. C. 2 Stra. 778. S. C. 2 Ld. Bay. 1500. S. C. Prac. Reg. 306. S. C. 1 Bar. 15. This was a writ of error on a judgment in the Common Pleas, in an action of debt for a penalty in not performing an agreement, to receive and pay so much for a transfer of stock, &c. The defendant pleaded nil debut; to which plea the plaintiff demurred and had judgment, for that nil de/tet was no good plea ; and that being now the only question, It was argued by Iieeve/w tlie plaintiff'in error, that the plea was good. It is true, it is not so in an action of debt on a bond, because the debt is immediately due ; but it is otherwise in an action for a penalty, because the plaintiff could not demand it as a debt or duty ; for it is not so without laying some fact antecedent to his demand, to entitle himself to this action ; and that must be something dehars the deed to support the demand ; for there is a difference between a bond for performance of articles, where the condition appears in the very body of the bond, and an obligation which has a defeasance or condition in it not in the body of the obligation ; for in this last case a man may have an action on the obligation, without setting forth any matter dehors to entitle him thereunto; and in such case nil debet is no good plea, for the obligation must be avoided by matter of as high a nature, and the defendant is estopped by the deed to say nothing is due; but it is otherwise in the first case, for there the debt is not due primA facie on the deed, but for not doing some other collateral act. The cases following were cited to shew this to be the constant difference, viz. that wherever the debt arises by matter collateral to the lien, it is a good plea; because there arises no estoppel by the deed. When matter of fact and record are mixed, the party is not bound to plead mil tiel record, in an action of debt against (a) Salk. 290, pi. 29. 232 MICHAELMAS TERM, 11 GEO. 1. IN B. E. 8 MOD. 324. a sheriff or gaoler, for an escape of one in execution (a); though the plaintiff must declare on the judgment, nil debet is a good plea, and so it is to an action of debt on the statute 2 Edw. 6, for not setting out tithes (b); and so it is to an action of debt on [324] a judgment against an executor upon suggesting a deoaslavit...
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