By the Court,
Nelson, Ch. J.The statute regulating the proceedings against absconding, concealed and non-resident debtors, provides that the debtor may be discharged from the same on giving a bond to the creditors prosecuting the attachment in the penal sum double the amount of the debts sworn to, with sureties to be approved by the officer, conditioned that they will pay to each attaching creditor the amount justly due and owing by such debtor at the time he became an attaching creditor on account of any debt so claimed and sworn to, with interest thereon. (2 E. S., 127, §55.)
Every such bond shall be held for the common benefit of all the attaching creditors, and may be prosecuted at any time within six months after its date, and not afterwards, by them jointly, or by any one of them separately in respect to his separate demand ,• and in every such action the prosecuting creditor shall establish his demand in the same manner as in an action against the debtor. (§ 58.)
It is supposed by the counsel for the defendants, that the bond in this case is only inducement to the action, and that the debt for which it is given as security, on the lien under the attachment proceedings being discharged, is the foundation of it, and hence that nil debet is the appropriate plea.
But upon looking at the cases upon which this rule of pleading is founded, it appears to me impossible to hold, without overturning them, that the action here is founded upon the debt of Blydenburgh, and not upon the bond. It is like an action upon any other bond conditioned to pay the note or obligation of a third person. The remedy is upon the specialty, and upon that alone. Unless the reco*171very is founded upon that, there can be no recovery in the case, for it is only by virtue of this obligation that the defendants are at all liable.
They have obligated themselves to pay the debt, provided it is established by proof oh the trial that it was due and owing at the time the plaintiff became an attaching creditor. This being shown, the condition is broken, and a recovery follows. The mere circumstance that extrinsic facts must be avered and proved in order to make out a breach will not help the defendants- When the deed is the foundation of the action, although extrinsic facts are mixed with it, the defendant must, notwithstanding, plead non est factum, and nil debet is bad. (1 Chitty’s PL, 478.)
The case of Gates v. Wheeler, in this court (2 Hill, 232), was a much stronger case for the defendant, where this plea was condemned after a full review of all the cases. So was the case of Warren v. Consett (2 Ld. Ray., 1500), refered to in that case. Indeed, the only exception to the rule, that the defendant must plead non est factum where the plaintiff - declares on the deed, seems to be debt for rent by indenture, and there he need not count upon it at all, and still recover.
For these reasons the plaintiff is entitled to judgment, leave to defendants to amend without costs.
Judgment accordingly.