Gates v. Wheeler
New York Supreme Court
Debt demanding $1544. The first count set out a sealed agreement between the parties, dated April 27, 1839, by which it was agreed that the plaintiff should let his boat to the defendant for the season of canal navigation for one dollar per day, to be paid by the defendant in monthly payments: averring that the plaintiff did let the boat to the defendant for the season, in pursuance of the contract; and the defendant by virtue of the letting did use the boat for the season,…
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Debt demanding $1544. The first count set out a sealed agreement between the parties, dated April 27, 1839, by which it was agreed that the plaintiff should let his boat to the defendant for the season of canal navigation for one dollar per day, to be paid by the defendant in monthly payments: averring that the plaintiff did let the boat to the defendant for the season, in pursuance of the contract; and the defendant by virtue of the letting did use the boat for the season, amounting to 216 days: by means whereof the defendant became and was, and still is indebted to the plaintiff for the use…
1Opinion of the Court
By the Court,
Bronson, J.
When the action of debt is founded on a record or specialty, although extrinsic facts are alleged, nil debet is no plea. If the defendant wish to question the record or deed, he must do so directly, by pleading nul tiel record or non est factum. But when the record or specialty is but inducement to the action, and matter of fact is the foundation of it, the defendant may plead nil debet, and put the plaintiff to prove the whole declaration. The rule is a familiar one; the only difficulty is in the application of it. In debt for rent by indenture, (a) or for an. escape,…
2Cases cited4 opinions
- Love v. KidwellIndiana Supreme Court · 1838
- Minton v. WoodworthNew York Supreme Court · 1814
- Bullis v. Giddens & BrownNew York Supreme Court · 1811
- Niblo v. ClarkNew York Supreme Court · 1829