#### Gassner *v.*Sandford.

*Nul tiel record,*pleaded in an action of debt on judgment, is a plea of the general issue, within the provision of the statute authorizing notice of special matter to be given whenever the general issue is pleaded.

The statute authorizing a defendant to give notice of his defence, instead of pleading it, is a remedial act, and should be construed liberally.

In an action of debt upon a judgment, brought after a great lapse entry of the judgment, it is competent for the defendant to show that an execution was issued upon the judgment soon after its recovery ; that the defendant had property which could be reached by the process; that the officer having charge of the same is dead, and his papers missing; and that the execution has not been returned to the proper office. These facts unexplained, will warrant a, jury in finding for the defendant.

March 29;

April 7, 1849.

*441This was an action of debt, brought to recover the amount of a judgment recovered in the court of common pleas for the city of New York, in the year 1828, for the sum of $222 30. The declaration set forth the judgment, to which the defendant pleaded *nul tiel record.*Annexed to this plea, was a notice of special matter, viz.: that on the first day of July, 1828, the defendant fully paid and satisfied the sum claimed in the declaration. The cause was tried before Chief Justice Oakley and a jury, on the 5th day of January, 1850.

Upon the trial, the plaintiff introduced in evidence a record of a judgment recovered in the court of common pleas, by the plaintiff against the defendant in the May term of the court in the year 1828, for $222 30. The interest upon the said judgment was admitted to be $318 93. The plaintiff thereupon rested.

It appeared in evidence on the part of the defendant, by the testimony of Andrew Warner, who had been for eighteen years a clerk in the office of the clerk of the city and county of New York, that from an entry in the precipe book in July Term, 1828, a *fieri facias*for $222 30, was issued against the defendant at the suit of the plaintiff, and that no entry was made in the precipe book of its return. That whenever writs were returned, an entry of such return was always made.

The plaintiff’s counsel objected to any evidence of the issuing of the execution, which objection was overruled, and the plaintiff excepted.

It further appeared by the testimony of Henry Tysen, who had been an assistant in the office of the sheriff for sixteen or eighteen years, that the sheriff was in charge of the defendant’s property, consisting of his household furniture, library, and the wardrobe, scenery, printing office, and other movables of the Lafayette Theatre, and the horses, wardrobe and scenery, of the Mount Pitt Circus. That Mr. Platt was the deputy, and p'aced the witness in charge of the property in October, 1848; that he remained there about one hundred days, until the property was sold. The sales were made at different times. That some time after the sale, Mr. Platt died very suddenly, and his papers could never be found.

*442There was some further testimony as to the sale of the defendant’s property.

William Lowerre, the attorney who recovered the original judgment, testified to his having issued an execution on the day of its rendition, and that there was no entry in his register of its return. Being cross-examined, he said he had never learned from the sheriff whether a levy had been made; and that he had never received the money, and never learned that it had been collected.

The defendant rested, and the plaintiff’s counsel called the defendant, who testified, that in the winter and spring of 1829, all his real and personal property had been sold by the sheriff; that he did not know what the proceeds of the sale were ; nor whether the sheriff had ever received the amount of the execution upon the judgment in this cause ; nor whether there were proceeds sufficient to pay it. In answer to a question by the judge, the witness testified that his property, if sold at a fair value, would have been sufficient to pay all his debts.

The judge charged the jury, that under the circumstances of the case, although twenty years had not elapsed, they had a right to infer payment, and if they did, they must find for defendant ; otherwise, for plaintiff. The jury rendered a verdict for the defendant.

*Slosson*and *Schell,*for the plaintiff.

*B. L. Billings,*for the defendant.

By the Court. Sandford, J.

The defendant is permitted to give notice of any matters which if pleaded, would be a bar to the action, whenever he shall plead the general issue, in any action in which such issue may be pleaded, (2 R. S. 352, § 10;) and the principal point presented by the case, is whether *nul tiel record*pleaded in an action of debt on a judgment, is such a general issue.

The subsequent provision in the same section, extending the privilege of giving a notice to *nil debet,*pleaded to debt on judgment, and to *non est factum*in covenant; does not aid the *443plaintiff, nor does it assist us much in pur inquiry. It is only to foreign judgments, and domestic judgments recovered in courts not of record, that *nil debet*can be pleaded. The revised statutes extended the notice of defence to this class of cases, without intending to extend the plea of *nil debet*to cases in which it was not previously a proper plea. *(White*v. *Converse,*20 Wend. 266.) And as the legislature was aiming to enlarge the privilege of giving notice, and expressly conferred it in the action upon judgments in which *nul tiel record*is not pleadable, it is perhaps a fair inference, that they deemed the latter plea to be a generaloissue in actions on domestic judgments of record.

Previous to the revised statutes, *nul tiel record*was not a general issue. *(Bullis*v. *Giddens,*8 Johns. 82; *Raymond*v. *Smith,*13 Ibid. 329 ) The reason was, that it was triable by the court at bar, and not by a jury. By the revised statutes, this is changed, and the existence of the record, when denied, is to be tried by a jury as an issue of fact. (2 R. S. 409, § 4 ; *Trotter*v. *Mills,*6 Wend. 512.)

The reason of the former rule no longer exists, and we cannot perceive why the rule itself should continue. The record of the judgment declared on, is the whole basis of the plaintiff’s action. The denial of the existence of the record, puts his whole claim in issue. This, it seems to us, fully answers the description of a general issue.

The courts have repeatedly declared, that the statute authorizing notice of the defence to be given, instead of pleading it, is a remedial act, and should be construed liberally. In *Mervin*v. *Kumbel,*(23 Wend. 301,) where this was said by Bronson, J. he added, “ I think the statute meant to, turn the plea of *nul tiel record*into a general issue upon the original cause of action.” He was, it is true, speaking of the plea when put in by a joint debtor, not served with process in the original suit; but if it were a general issue to the original cause of action, it surely could be no less to the action properly founded upon, and supported by the judgment.

In *Wilmarth*v. *Babcock,*2 Hill, 195,) the court said a partial defence might be given in evidence on the trial upon the issue of *nul tiel record ;*which could not be so unless that plea was *444the general issue. This plea is ranked as a general issue in the books of practice, since the revised statutes. (Graham’s Pr. 196, 198 ; Burrill’s Pr. 164.)

Our conclusion is, that the notice of special matter was properly appended to the plea of *nul tiel record,*and that the evidence in support of it was correctly admitted on the trial.

We have no doubt that the proof was competent under the notice, and sufficient to establish the defence. *(Miller*v. *Smith,*16 Wend. 425.)

Motion for new trial denied.