Tuthill v. Clark
New York Supreme Court
The defendant had interposed a. plea of title to an action of trespass commenced before a justice. The plaintiff then commenced his suit in the common pleas, and declared specially, describing the locus in quo. The defendant pleaded not guilty and liberum tenementum, and the cause having been removed into this court by certiorari, the plaintiff now moved that the plea of not guilty be stricken out.
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The defendant had interposed a. plea of title to an action of trespass commenced before a justice. The plaintiff then commenced his suit in the common pleas, and declared specially, describing the locus in quo. The defendant pleaded not guilty and liberum tenementum, and the cause having been removed into this court by certiorari, the plaintiff now moved that the plea of not guilty be stricken out. Por the peculiar circumstances attending the pleadings in this cause, the reader is referred to the following opinion of the court, and to the same case in 11 Wendell, 642.
1Opinion of the Court
By the Court,
Savage, Ch. J.
In the case of Strong v. Smith, 2 Cowen, 28, the court say, that at nisi prius the defendant could not avail himself of the general issue, as the whole matter appears on the record. Probably the record in that case did show the fact that the action then before the court was a' suit brought for the same cause of action as the suit before the justice. Here that fact is averred by the plaintiff, and 'denied by the defendant; it did not appear, therefore, upon the record, and upon the record it was a question of fact to be decided by the jury. Before the revised…
2Cases cited1 opinion
- People ex rel. Parsons v. Rensselaer Common PleasNew York Supreme Court · 1829