
    Minton, qui tam, &c. against Woodworth and Ferris.
    NEW YORK,
    October, 1814.
    ín deed’"!? inducement to, and matter of fact, the founda tion of the action, nil depleaded^ be
    thedeSlshtbe foundation of the action.
    In debt for an escape from the gaol liberties, nil debet is a good plea.
    in a popular action, the plaintiff cannot discharge the judgment as to the people’s moiety, without payment. And if, in such action, the defendant, having been taken in execution, is discharged by the plaintiff, withoutsatisfaetion, such discharge is no bar to an action for an c scape.
    
    THIS was an action of debt, brought by the plaintiff, who sue¿ as well, &c. as assignee of the late sheriff of Cayuga, on ’ ... . . . . . ° a bond for the gaol liberties, executed by Woodworth and Ferns, 3.s his security.
    The declaration stated that the plaintiff had, in a qui tam ac* tion, in the supreme court, recovered a judgment against the defendant, Woodworth, for two hundred and fifty dollars; that in August, 1811, he issued a ca. sa., on which the defendant was taken, and that he and the defendant, Ferris, executed a bond to the sheriff for the liberties of the gaol; that on the 1st of September, 1812, Woodworth escaped, and that on the 18th of September, in the same year, the bond was duly assigned to the plaintiff, who brought the present action, as well on behalf of the people, &c. as of himself.
    The defendants, after oyer of the condition of the bond, pleaded five pleas:
    1. Nil debet.
    
    2. That the plaintiff, on the 23d of Decembet, 1811, discharged Woodworth from his imprisonment, and suffered and permitted him to go at large without the limits, &c.
    3. After stating and admitting the allegations contained in the declaration, as to the judgment, ca. sa., and execution of the bond to the sheriff; that, while Woodworth remained a true and faithful prisoner, on the 23d of December, 1811, the plaintiff discharged Woodworth, and suffered and permitted him to go at large without the limits, &c. which is the same escape, See.
    
    4. That Woodworth did commit the escape, and go at large without the limits, by the leave and license of the plaintiff, on the 23d of December, 1811.
    5. That after executing the bond to the sheriff, on the 23d of December, 1811, the defendant Woodworth paid to the plaintiff the sum of 250 dollars, being the full amount of the debt recovered by the judgment.
    To the four first pleas the plaintiff demurred, and the defend-, ant joined in demurrer; to the ,5th plea the plaintiff replied, and tendered an issue.
    
      Richardson, in support of the demurrer.
    1. Nil debet is not a good plea where the action is founded on a record or specialty, as in an action by the assignee of the sheriff, upon a bail bond.
    
    2. The other pleas are, also, bad; for a plaintiff in a qui tam or popular action, cannot compound with, or discharge the defendant, without the order or consent of the court;
       and, after verdict, the court will not give leave to compound, unless under very special circumstances.
    
    
      Sedgwick, contra.
    1. Where the bond or specialty is not of the essence of the action, but only inducement to it, there nil debet is a good plea. Now here, the escape is the foundation ©f the action, and the bond taken is only inducement.
    
    2. This is not a popular action. The plaintiff is not a common informer. The statute, therefore, does not apply to this case. In the case of Crowder v. Wagstaff,
      
       there was a verdict. But compounding of an action can only be before verdict.
    
      
      1 Saund. 38. n. 3. 2 Ld. Raym. 1503. 2 Str. 780. 5 Burr. 258. 6.
    
    
      
      
        Bradnay v. Leworthy 9 Johns. Rep. 251. 1 N. R. L. 101. (Sess. 11. c. 9 s. 3.) Caswell v. Allen, 10 Johns. Rep. 118.
      
    
    
      
       1 Bos. & Pull. 18. 5 Term Rep. 258. 1 Wils. 79.
    
    
      
       1 Chitty's Pl. 447. 1 Ld. Raym. 1500. 1 Saund. 176. n. 1. 2.
    
    
      
       1 Bos. & Pull. 18.
    
   Thompson, Ch. 3*.

delivered the opinion of the court. This case comes before the court on a general demurrer to the four first pleas. The action is debt upon a bond for the gaol liberties, for the defendant, Woodworth. The first plea is nil debet, and ifie three following pleas, which are. substantially alike, allege that the plaintiff discharged the prisoner, and that the escápe was by his consent, order, or direction.

The demurrer to the first plea is not well taken. The general rule is, that where in debt on a specialty, the deed is only inducement to the action, and matter of fact the foundation, nil debet may be pleaded. But where the deed is the foundation of the action, although extrinsic facts are mixed with it, nil debet is not a good plea, (1 Chitty’s Plead. 476, 477. 2 Sound. 287. a. n. 2.) The present action falls within the first class of cases. The specialty is but inducement, and the escape is the foundation of the action. (8 Johns. Rep. 82.)

But the three next pleas cannot be supported according to the decisions of this court, in the cases of Bradway, qui tam, v. Leworthy, (9 Johns. Rep. 251.) and Caswell, qui tam, v. Allen. (10 Johns. Rep. 118.) In these popular actions, the plaintiff has no right to discharge the judgment, or compound with the defendant, without the leave of the court, or without receiving payment of the judgment. The defendant being in custody upon a ca. sa. the discharge by the plaintiff as set forth in the pleas, was equivalent to a release or discharge of the judgment; and, in a mere private action, would be a complete exoneration of the defendant from the debt. But in actions of this description, such discharge, so far as it relates to the moiety of the penalty belonging to the people, is void, and cannot excuse the escape. In the case of Crowder v. Wagstaff, (1 Bos. & Pull. 18.) on motion to compound a qui tam action, after verdict, it was stated to the court that the plaintiff consented to the compounding. But the court said, we cannot pay any attention to the consent of the plaintiff after verdict. So, in this case, the consent of the plaintiff to the escape was void, and can avail nothing. There must, accordingly, be judgment for the defendant upon the demurrer to the first plea, and for the plaintiff on the demurrer to the other three pleas.

Judgment accordingly.  