Niblo v. Clark
New York Supreme Court
Error from the New-York common pleas. Clark sued Niblo in an action of debt on recognizance, entered into by Niblo as the bail of one Edward King, in a suit prosecuted by Clark against King, in the New-York common pleas.
Read the full summary
Error from the New-York common pleas. Clark sued Niblo in an action of debt on recognizance, entered into by Niblo as the bail of one Edward King, in a suit prosecuted by Clark against King, in the New-York common pleas. Niblo pleaded, 1. Nil debit; 2. The death of the principal after judgment and before the return of a ca. sa.; 3. That after the judgment against the principal, and before the issuing out of ca. sa. thereupon, to wit, on the 1st December, 1827, at the city ofNew-York, the plaintiff gave licence and granted permission to the principal to depart from the city of New-York and…
1Opinion of the Court
*25 By the Court,
Sutherland, J.
The first plea is bad on general demurrer. It is nil debit to debt on rocognizance of bail. The case of Bullis v. Gibbons & Brown, (8 Johns. R. 82, is precisely in point. The authorities there cited fully shew that nil debit is not a good plea to such an action. The specialty or record is not merely inducement to the action, but the action is founded upon it. In the latter case nil debit cannot be pleaded, though it may in the first. (1 Saund. 39, n. 3. 2 Ld. Raym. 15. 2 Strange, 778. 8 Mod. 107, n. 5 Burr. 2586.) The judgment below was therefore correct so far as…
2Cited by6 opinions
- Reese v. United StatesSupreme Court of the United States · 1870
- Curan v. ColbertSupreme Court of Georgia · 1847
- La Farge v. HerterNew York Supreme Court · 1850
- Hall & Paulson Furniture Co. v. SchmidtWashington Supreme Court · 1893
- Gates v. WheelerNew York Supreme Court · 1842
1 more not listed; retrieve them via the Exa API.