Witherwax v. Averill

The ground upon which we compel a defendant to elect between a plea of nul tiel record, and other pleas, is, that their mode of trial is different; one being by the record, the others by jury. No such consequence follows here from retaining both pleas. The existence of a justice’s judgment is not determinable at bar, by the record. It ranks as a specialty. (16 John. 233.) And the plea of nul tiel record, if it be good and capable of trial, in this case, must be tried by a jury.

Motion denied.