CHAPTER XII. OF PROCEEDINGS ON NUL TIEL RECORD. Where issue triable by court.] Where a record of this court, or of another court within the same jurisdiction, is declared upon or pleaded, and the opposite party pleads or replies nul tiel record, upon which issue is taken, the trial is by the court and not by the country. But where the plea consists both of matter of fact and matter of record, the issue must be to the country; and so where the judgment of a court of another state, or of a circuit or district court of the United States, for either of the districts into which this state is divided, is put in issue by the plea of nul tiel record, the issue must be to the country, and the verity of the record is triable only by a jury.3 26 Johns. Rep. 26. 5 Johns. Rep. 112. 3 Mod. 79. Com. Dig. Pleader, E. 32. Bull. N. P. 230. 10 Johns. Rep. 51. 3 1 1 Dunlap. Pract. 525. 1 Tidd. plea is not to be received, and the Pract. 800. plaintiff may sign judgment. But this cannot be done, when the defendant pleads a record of another court; which is the reason that, in pleading the sham plea of judgment recovered, it is always a judgment of another court that is pleaded." 2 Archbd. Pract. 12, and cases there cited. As to form of plea, replication, &c., of nul tiel record, see Archbd. Plead. and Evid. p. 249. Am. Ed. 1 Saund. 92. n. 3. 1 Dunlap. Pract. 525, 526. Archbd. Forms, 310, 311. 17 Johns. Rep. 282. et vide 5 East. Rep. 473. According to the English practice, "the plaintiff instead of replying nul tiel record, may demand of the defendant a note in writing of the term and number roll whereon such judgment or matter of record is entered or filed, or in default thereof the Non-enume rated motion. Record must be produced. How record of another Trial, &c.] Trial by the record is brought on as a nonenumerated motion,' in pursuance of notice, in the same manner as other special motions.5 On the trial of the issue the record itself must be produced, if it be a record of the same court; or the tenor of the record, if it be the record of another court within the jurisdiction of this state. To obtain the tenor of the record of another court, within the jurisdiction of this state, a certiorari may be issued out of this court; but where a record of the supreme court is pleaded in an inferior court, there is no way to have it, but by certiorari and mittimus out of chancery." If the record of another state be put in issue, it must be austate authen-thenticated in the manner prescribed by the act of congress, to which we have already referred.9 ticated. Variance. When re spondeat ouster If there be a material variance between the record produced to the court, and the record pleaded, as in the names of the parties, or in the amount of the damages, it is a failure of record, and judgment will be rendered in favour of the party pleading nul tiel record:10 but an immaterial variance is not a failure.11 If the defendant plead in abatement another action depending on the same cause, and the plaintiff afterwards discontinue such action, the issue on nul tiel record must be found against him; because the plea was true at the time of pleading it: but if a recovery be pleaded in bar, and the judgment is afterwards reversed, before the day given to bring in the record, ↑ 2 Caines. Rep. 385. Laws U. S. Story's Edition, 5 2 Johns. Cas. 111. 1 Caines' Vol. 1. p. 293. Rep. 6. • Bull. N. P. 230. 2 Burr. Rep. 1034. 1 Mad. Ch. 12. 3 Salk. 296. pl. 5. 7 Cro. Eliz. 821. 2 Burr. Rep. 1034. Cro. Cas. 377. 9 Ante, Vol. 1. p. 480, 481. 10 Com. Dig. Record, C. 7 Term Rep. 443. n. d. "Com. Dig. Record, D. there upon nul tiel record, the issue must be found for the plaintiff, because by the reversal the record is avoided, ab initio.12 Judgment.] On a replication of nul tiel record to a plea in abatement, the judgment for the plaintiff is not final, but only a respondeat ouster. 13 In other cases the judgment is interlocutory or final, in the same manner, and in the same cases, as judgment upon demurrer or default.14 The rule for final judgment is a rule nisi, or unless cause Rule nisi. be shown within four days, in order that the defendant may have time to move in arrest of judgment: but where the judgment is interlocutory there is no occasion for a four day rule, because the defendant may move in arrest of judgment after the inquiry is executed.15 21 Ld. Raym. 274. 2 Ld. Raym. 1014. 1 Salk. 329. 13 2 Tidd. Pract. 804. 14 2 Archbd. Pract. 13. 15 Barnes, 264. 2 Tidd. Pract. 804, 805. CHAPTER XIII. OF ATTACHMENTS, AND PROCEEDINGS AS FOR CONTEMPTS, TO EN- Nature of attachment. How directed. It is important to observe the distinction between contempts, strictly such, and offences which go by that name, but which are punished as contempts, only for the purpose of enforcing some civil remedy.1 The latter only are the subject of this chapter. An attachment is in its form a criminal process, designed for the punishment of contempts of the court, and is intended to bring into court the party against whom it is issued, for the purpose of answering the interrogatories which, upon the return of it, are to be exhibited against him ; but in its design and effect it is frequently no more than a civil proceeding.1 When an attachment is issued against the sheriff, it is directed to the coroners, or some one of them; and where an attachment is issued against a coroner, the court will, on motion, appoint elisors to execute the same." In what cases.] All or nearly all the `cases, in which attachments and proceedings as for contempts have been in use, 1 See Revisers' Reports, Chapter 3 of Part 3. p. 11, 12. and Chapter 8. p. 146. 21 Wils. 300. 35 Johns. Rep. 117. R. St. P. 3. Ch. 8. T. 13. s. 19. Vol. 2. p. 537, 538. 4 6 Cowen. Rep. 42. Cowp. 136. 1 Term Rep. 266. 4 Black Com. 285. 1 Bos. & Pull. 336. 5 R. St. P. 3. Ch. 7. T. 6. s. 84. 85. Vol. 2. p. 441, 442. 61 Cowen. Rep. 32. for the purpose of enforcing civil remedies, are enumerated in the revised statutes. It is provided that, court to pu "Every court of record shall have power to punish, by fine Power of or imprisonment, or either, any neglect or violation of duty, conduct. or any misconduct, by which the rights or remedies of a party in a cause or matter depending in such court, may be defeated, impaired, impeded, or prejudiced, in the following cases: court. "1. All attornies, counsellors, solicitors, clerks, registers, Officers of sheriffs, coroners, and all other persons, in any manner duly selected or appointed to perform any judicial or ministerial services, for any misbehaviour in such office or trust, or for any wilful neglect or violation of duty therein; for disobedience of any process of such court, or of any lawful order thereof, or of any lawful order of a judge of such court, or of any officer authorized to perform the duties of such judge: deceit, &c. "2. Parties to suits, for putting in fictitious bail or sureties, Parties for or for any deceit or abuse of the process or proceedings of the court: money or "3. Parties to suits, attornies, counsellors, solicitors, and Not paying all other persons, for the non-payment of any sum of money dered, &c. ordered by such court to be paid, in cases where by law execution cannot be awarded for the collection of such sum; and for any other disobedience to any lawful order, decree, or process of such court: with procee "4. All persons, for assuming to be officers, attornies, soli- Interfering citors, or counsellors, of any court, and acting as such without dings, &c. authority; for rescuing any property or persons, which shall be in the custody of any officer, by virtue of process issued from such court; for unlawfully detaining any witness or party to a suit, while going to, remaining at, or returning from, the court where such suit shall be noticed for trial; and for any other unlawful interference with the process or proceedings in any action : of witnesses. "5. All persons summoned as witnesses, for refusing or ne- Neglect, &c. glecting to obey such summons, or to attend, or be sworn, or answer, as such witness: |