Meyer M'Clean
New York Supreme Court
moved in arrest of judgment in this cause, on the ground, that the plea of nil debet to an action of debt on a judgment was a nullity. He contended, that by going to trial, the defendant had not affirmed the plea; that -mil tiel record was the only general issue, and the statute expressly required the general issue to be pleaded. The statute allowing special matter to be given in evidence under the general issue, was for the purpose of avoiding special pleading.
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moved in arrest of judgment in this cause, on the ground, that the plea of nil debet to an action of debt on a judgment was a nullity. He contended, that by going to trial, the defendant had not affirmed the plea; that -mil tiel record was the only general issue, and the statute expressly required the general issue to be pleaded. The statute allowing special matter to be given in evidence under the general issue, was for the purpose of avoiding special pleading. The notice is iu place of the special plea, and is the substantial matter. The general issue is merely for form. Having received…
1Per curiam
Without deciding whether nil debet might or might not be pleaded for form’s sake, and as an issue to the country, for the purpose merely of upholding notices of payment, and thus secured to a person sued on a judgment of one of our own courts, the benefits intended by the statue to facilitate pleading,* we are all of opinion,
*183that the plaintiff having treated this plea in the present case as a legal plea, and having gone to trial upon it, he cannot now allege any thing against it, and is concluded by his own acts. This decision is analogous to that of Rush v. Cobbet, decided here in January…
2Cited by6 opinions
- People ex rel. Lewis v. WaiteIllinois Supreme Court · 1873
- Simmons v. . SissonNew York Court of Appeals · 1863
- Williams v. ClaytonUtah Supreme Court · 1889
- Wright v. BoyntonSupreme Court of New Hampshire · 1858
- Corning v. CorningNew York Court of Appeals · 1851
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