Minton v. Woodworth , 11 Johns. 474 ( 1814 )

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.