State v. Sutcliffe , 16 R.I. 520 ( 1889 )

It is settled that, in scire facias on a recognizance under the plea of nul tiel record, the only question is whether there be such a record, and that is a question to be decided by the court on inspection. Stephen on Pleading, *101. It follows that the attempt to raise other issues under the plea was rightly disallowed, and the exceptions taken for their disallowance must be overruled.

The defendant, besides pleading nul tiel record, pleaded specially "that he does not owe to the said State of Rhode Island the said sum of money or any part thereof, and did not so acknowledge as the plaintiff has above declared, and of this he puts himself on the country." This plea was stricken out, on motion, and exception reserved. If the plea be regarded as simply a plea of nil debet, which seems to be the more proper way of regarding it, it was properly stricken out, nil debet being an improper plea when the record or specialty itself is the ground of the action, and is not set up merely by way of inducement.Bullis v. Giddens, 8 Johns. Rep. 64; White v. Converse, 20 Wend. 266; 1 Chitty on Pleading, 16 Amer. ed. *511, note (b).

It is argued that the defendant, under the averment that he did not acknowledge himself to be indebted, might prove that he was not the person who entered into the recognizance. We think, however, that if this was the defence, the defendant should have pleaded specially that he was not the person, since the plea as filed does not directly allege that he was not the person, but only that he did not acknowledge. Renoard v. Noble, 2 Johns. Cas. 293; Hobhouse v. Hamilton, 1 Sch. Lef. 207. Lilly's Entries, 398.

The exceptions are overruled, and the judgment of the Court of Common Pleas affirmed with costs.