Trotter & Douglass v. Mills — 6 Wend. 512

Majority

p. 512

Trotter & Douglass vs. Mills.

Headnote

An issue of mil tiel record, being an issue of fact, must be tried by jury: where, therefore, a defendant pleaded ntiZ tiel record and an insolvent discharge, the court refused a rule that the defendant elect between his pleas.

Motion to elect one of two pleas. The action is debt on judgment. The defendant pleads ml tiel record, and a discharge under the insolvent act, exempting his body from imprisonment.

S. Dutcher, jun., for the plaintiff,

moves that the defendant elect by which of the pleas he will abide, or that the plaintiff have leave to strike out one of them, they being of such a nature as to require different modes of trial.

II. Bleecker, for defendant.

The defendant must plead his discharge, or lose the benefit of it, 15 Johns. R. 152; and he cannot be deprived of his right to dispute the record. A defendant will be compelled to elect only where the pleas are inconsistent, 2 R. S. 352, § 9. Besides, all issues of fact must be tried by a jury, 2 R. S. 409, § 1.

By the Court,

A similar motion was made in Le Conte v. Pendleton, 1 Johns. C. 104, which was granted, and that the defendant elect, in four days, which of the pleas he would abide by, or, in default, that the plaintiff elect. In Carnes v. Duncan, Cole.

p. 513

fendant might know, with absolute certainty, whether there was such a record or not. Dunlap says: “ The defendant will not be allowed to plead matters which require different trials, as ml liel record and payment; one of which must be tried by the record, and the other by the country.” In Weatherwax v. Averill, 6 Cowen, 589, to a declaration on a justice’s judgment, the defendant pleaded payment and nul tiel record; and the court refused to compel the defendant to elect, because in that case both must be tried by a jury, a justice’s judgment not being a record, but a specialty, 16 Johns. R. 233 ; but recognizing the practice in a proper case.

It was suggested in argument, that the discharge could not be attacked, unless the defendant was convicted of perjury, and Cable v. Cooper, 15 Johns. R. 152, was referred to. Van Ness, justice, there says, that if the defendant had been convicted of perjury in.obtaining his discharge, he might be .again imprisoned. He was speaking of a*discharge, where the party had once been actually imprisoned, which is not now necessary to obtain a discharge under the act of 1819, which retains the same provision as that under which that decision was made; but it also adopts certain sections of the act for giving relief in cases of insolvency, the 29th section of which permits a plaintiff to reply fraud to such a plea, and to specify the acts of fraud in a notice. 1 R. L. 471. But I am inclined to think that the Revised Statutes, vol. 2, p. 409, § 4, have abolished all distinctions as to the trial of facts; all issues of fact are to be tried by a jury, except where a reference is ordered. By the Revised Laws, vol. 1, p. 325, all issues triable by a jury were to be tried at a circuit or sittings, or at bar. I am inclined to think, therefore, the motion must be denied, but without costs.