2 Johns. Cas. 256

Rush against Cobbett.

In an action of debt on a judgment in the supreme court of Pennsylvania, the defendant pleaded nil debet and payment. It was held, that the plain* tiff was bound to produce and prove the record of the judgment, or an exemplification thereof.

This was an action of debt, on a judgment of the supreme court of the state of Pennsylvania. The defendant, pleaded nil debet, and payment. The cause was tried before Mr. Justice Lewis, at* the New York circuit, the 27th November, 1800. -

At the trial, the counsel for the plaintiff contended, that he was not bound to produce the record of the judgment of the court in Pennsylvania; that the pleas of nil debet and payment, admitted the record to be, as it had been declared on by the plaintiff, and it was only necessary for him to have Ihe damages assessed by the jury. The defendant’s counsel insisted, that it*was incumbent on the plaintiff, to produce the record, or an exemplification of it.

The judge decided, that the pleas of nil debet and payment admitted the record as declared upon; and that the plaintiff was not, therefore, bound to produce it; and the jury, under his direction, found a verdict for the plaintiff.

A motion was made to set aside the verdict, and for a new trial, for the misdirection of the judge.

Pendleton and Riggs, for the defendant.

B. Livingston, contra.

Radcliff, J.

delivered the opinion of the court. The question is, whether, under the plea of nil debet, the record of the judgment in Pennsylvania, ought to have been proved.

1. If the plea of nil debet had any effect or operation, I think it was incumbent on the plaintiff to prove the record. *257It is the general issue, which admits nothing, and is a total and general denial of the plaintiff’s right of action.(a)

2. The question whether the plea was proper, arises on the face of the record, and, if improper, it ought to have been answered by demurrer, or not to have been answered at all, and treated as a nullity. By taking issue upon it, the plaintiff has treated it as a regular and competent plea. Having done this, he cannot afterwards consider it as a nullity, and, on that ground, dispense with proof which would otherwise be required. It is unnecessary here to determine, whether nil debet, or nul tiel record, is the proper plea to an action of debt on a judgment given in another state.(b) This would 'demand a consideration of the constitution of the United States, and the act of congress (4th article of the constitution, and act of the 26th May, 1790, Laws of the United States, (vol. 1, p. 115,) relating to the mode of proof, and the effect of such judgment, which present a question of considerable moment. We think it sufficient, to decide the present case, that the plaintiff , has admitted the propriety of the plea of nil debet, by joining issue *258upon it,(a) and that the question on its merits cannot thus be regularly decided.

New trial granted.(b)

Rush v. Cobbett
2 Johns. Cas. 256

Case Details

Name
Rush v. Cobbett
Decision Date
Apr 1, 1801
Citations

2 Johns. Cas. 256

Jurisdiction
New York

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