
    John C. Sleeth vs. Jacob Cutler, Adm'r.
    
    In plea nil debet to action on specialty, plaintiff capnot take judgment as for want of plea. He should demur. Such judgment is irregular.
    Action of debt on note under seal brought by J. Cutler, administrator of the estate of George W. Cutler, against Sleeth — plea nil debet, and the plaintiff Cutler thereupon moved for 'judgment by default as for want of a plea: which motion was sustained by the Court, on the defendant’s refusal to plead a different plea, and the opinion excepted to by the defendant below, who brings this case here on a writ of error.
    Woods and Grimes for the plff. in error.
    D. Rorer and Henry W. Starr for the dft.
    The plaintiff relies on the following points:
    1st. That the Court erred in rendering judgment for the plaintiff on motion, as there was a plea on file.
    2d. That the plea of nil debet filed by the defendant was good, without demurrer, even when the action was founded on a writing obligatory.
    3d. That under the statute and laws of the Territory the instrument on which the action was brought was a simple contract sui generis, and as such, nil debet is the proper plea. The plff cited 1 Ch. PI. 516 — 8 Johns. R. 83.
    For the defendant it was contended that in debt on a specialty where the deed is the foundation of the action ‘mil debet” is no plea. Story’s Plead. 283
    —5 Bur. 2586, 7 #8. Hart, assignee, &c. vs. Weston.
    
      In this case “non est factum” is the proper plea — and “nil debet” is no plea. 1 Ch. PI. 478. 9 — 11 Johns. 473 — 1 Saun. 38.
    When the defendant pleads a plea “not adapted to the nature of the action,” the plaintiff may sign judgment. 1 Tidd’s Prac. 505, 506, 429, 430.
   By the Court

Wilson, J.

This is an action of debt brought by the defendant in error against the plaintiff in error upon a note under seal. To the plaintiff’s declaration the defendant filed the plea of nil debet with notice of special matter under the statute. At the February term, 1840, the plaintiff’s attorney moved for a judgment for want of a plea, which motion was sustained and judgment rendered accordingly.

The errors assigned are as follows, to wit:

[The errors are already stated above as the plaintiff’s points.]

We will first consider whether the plea of nil debet was a proper plea in this case.

The statute approved Jan. 25, 1839, sets forth that the defendant (in all cases) “may plead as many matters of fact in several pleas as he may deem necessary for his defence or may plead the general issue and give notice in writing under the .same of the special matters intended to be relied on for a de-fence on the trial, under which notice, if adjudged by the Court to be sufficiently clear and explicit, the defendant shall be permitted to give evidence of the facts therein stated as if the same had been specially pleaded, &c.” Was the plea of nil debet the general issue in this case? In debt on simple contracts or legal liabilities the general issue is nil debet. Ch. Pl. v. 1, 476.— There can be no doubt but that the foundation of the present action is neither of these. It is a specialty, and the position assumed in the third assignment of error “that the instrument on which this action was brought is a contract sui generis,” is untenable. “When the deed is the foundation of the action, although extrinsic facts are mixed with it, the defendant must plead non est fac-tum, and nil debet is not a sufficient plea, as in debt on a penalty on articles of agreement, or on a bail bond, ire. If in such cases nil debet be pleaded, the plaintiff should demur, for if he do not he will have to prove every allegation in his declaration, and the defendant will be at liberty to avail himself of any grounds of defence, which in general may be taken advantage of under the latter plea.” Chitty Pl. 478. Although we are fully satisfied that the plea was not a good one, yet the authority cited is conclusive. The plaintiff should have demurred.

The following is cited by the defendant in error from Ist Tidd’s Practice p. 505. Where the defendant pleads a plea not adapted to the nature of the action as nil debet in assumpsit, Sfc., the plaintiff may consider it as a nullity and sign judgment.” This signing of judgment refers to the practice in many courts of signing judgment in vacation in the Clerk’s office. But in the same paragraph the following is laid down: “The plea of not guilty in an action of debt on a penal statute is not such a nullity as will warrant the plaintiff in signing judgment. If the defendant, when under an order to plead issuably, put in a plea, which, though informal, goes to the substance of the action, the plaintiff cannot sign judgment as for want of a plea. And in general where the defendant pleads an improper plea the safest course is not to sign judgment, but to demur, or move the Court to set it aside.” In the case of Mayer vs. McClean, 2 Johns. R. 183, it was decided that “where the defendant pleaded nil debet to an action of debt on a judgment recovered, and gave notice of specia matter to be offered in evidence, and the plaintiff went to trial on this plea, it was held that he could not afterwards arr.est the judgment on the ground that the plea was a nullity,” and the Court in that case intimate a doubt whether it is not a sufficient general issue for the purposes of merely upholding notices of payment under their statute which is similar to ours. Without deciding this quere we are of the opinion that the plaintiff should have demurred, and that taking judgment in such a Summary manner was irregular.

Judgment below is reversed and a new trial awarded.  