United States ex rel. Ritchie v. Litle

26 F. Cas. 977, 3 D.C. 251, 3 Cranch 251

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: December 15, 1827
• Status: Published

Opinion

The Court (ThrustoN, J. absent,) gave judgment for the defendant upon the demurrer;

1. Because, as the record set forth in the declaration, was not the foundation of the action, but was only matter of conveyance or inducement, the plea, of nul tiel record was not an answer to the whole count; for the count avers letters of guardianship, and makes a profert of them; and non constat, that Ritchie was not guardian, although not appointed by the Orphans’ Court, as is supposed to have been stated in the record set forth in the declaration; and notwithstanding the issue on the plea of nul tiel record, if it had been pleaded, might have been found for the defendant, the plaintiffs would not have been precluded from showing that Mr. Ritchie was guardian by other means.

2. Because nul tiel record is not a good plea where the record is “ showed forth; ” but the defendant may deny the operation thereof; namely, that the record does not show the appointment. Com. Dig. Pleader, 2 W. 13; Young v. Pennington, Hard. 158; System of Pleading, 368, 369; Eden’s case, 6 Co. 16, (b), and Co. Lit. 260, (a,) says, “ If a grant, by letters patent under the great seal be pleaded and showed forth, the adverse party cannot plead nul tiel record; for that it appears to the court that there is such a record; but inasmuch as it is in the nature of a conveyance, the party may deny the operation thereof; therefore he may plead non concessit, and prove in evidence that the king had nothing in the thing granted, or the like ; and so it was adjudged.”

3. .Because nul tiel record is not a necessary plea where the record is not the foundation of the action.

4. Because the record recited in the declaration does not purport to be an appointment of Mr. Ritchie, as guardian, and therefore the plea that he never-was guardian, does not conflict with that record. The record only seems to take it for granted that he had been before appointed in some way not stated; perhaps by the infant himself. It is only an order that an existing guardian should give bond and security.