Wilbur v. Abbott

59 N.H. 132

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1879
• Status: Published

Opinion

Smith, J.

In Gould PL, c. 6, s. 10, nul tiel record is said to be the general issue in debt on judgment. So in Lawes Pl. 225. It is the only general plea in such an action, and puts in issue the verity of the record itself; and no evidence but that is admitted. Pillsbury v. Springfield, 16 N. H. 565, 572; Gould Pl., c. 6, s. 10; Story on Pl. 336. It is the proper plea when there is either no record, or where there is a variance in the statement of it. 1 Ch. Pl. 480, 481. The plea of nul tiel record does not conclude to the contrary, because the matter is to be determined by the court by inspection of the record. Hence it concludes with a verification, although it is a direct denial of the allegation in the declaration that there is such a record; and herein it differs from the general issue in other forms of action where the parties are at issue, when the defendant simply denies the essential part of the declaration. It confesses nothing, and avoids nothing; and there remains nothing for the plaintiff to do but to traverse the denial of the want of a record, concluding with a verification by the record.

For general purposes nul tiel record is the general issue, and in this case it can make no practical difference to the parties whether the estoppel is pleaded, or given in evidence under the issues which have been joined.

Motion granted.

Stanley and Clark JJ., did not sit: the others concurred.