Witherwax v. Averill

New York Supreme Court

Witherwax v. Averill

6 Cow. 589

CourtNew York Supreme Court

DecidedFebruary 15, 1827

StatusPublished

Cited by1 cases

This text of 6 Cow. 589 (Witherwax v. Averill) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Witherwax v. Averill, 6 Cow. 589 (N.Y. Super. Ct. 1827).

Pincite

Opinion

Curia.

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.

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Curia.

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.

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Bluebook (online)

6 Cow. 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witherwax-v-averill-nysupct-1827.

Opinion

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