This case comes before the court on a demurrer to the plea of nil debet to an action of debt on recognisance of bail, and the only question is, whether such a plea is good.
When 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. In these cases the' indenture or judgment is but inducement; and the arrears of rent, the escape and devastavit, are the foundations of the action. But when the action is grounded on a record or specialty, nil debet is no plea. This rule will be found to be fully supported by numerous authorities ; (1 Saund. 39. n. 3. 2 Ld. Raym. 15. 2 Stra. 778. 8 Mod. 107. note.) and according to which the plea in this case is bad. Whenever the validity of the plea of nil debet has been called in question in this court, it has been after trial, where the plaintiff had treated the plea as good, and therefore came too late to question it. (1 Johns. Rep. 510. 2 Johns. Rep. 183. 2 Johns. Cas. 257.) Although this rule may deprive the defendants, in such cases, of pleading the general issue, with notice of special matter under the statute; yet it does not preclude them from pleading specially, any matter which they may have to set up in their defence ; and this inconvenience had better be submitted to, than to innovate upon the settled and established rules of pleading.
The plaintiff must, accordingly, have judgment.