Basset v. United States

Both the pleas of the defendants were pleas of nul tiel record, the first denying the existence of the recognizance, and the second denying the pending of the indictment at the time the recognizance was taken. A plea of nul tiel record to a supposed record of the court in which the plea is made is tried by the court, because it is an issue to be determined by the inspection of its own records. But where the record of a foreign court is denied by this plea the issue is to be tried by a jury, because the existence of the record to be inspected must first be made by proof, which it may be necessary to submit to a jury.1 * When a court sits in place of a jury and finds the facts this court cannot review that finding. If there is any error in such case, shown by the record, in admitting or rejecting testimony, it can be reviewed here. But when the court, by permission of the parties, takes the place of the jury, its finding of facts is conclusive, precisely as if a jury had found them by verdict. In the case before us, however, the court did not sit to supply the place of a jury, because the record, the existence of which was denied by both pleas, was the record of the court in which the pleas were made. When, therefore, such record as did exist in regard to the matters in issue, was presented to the court, the only question to be determined, on which the court could exercise any judgment, was a question of law, namely, whether in legal effect there was found a record of the recognizance, and a subsisting legal judgment of conviction and punishment prior to the taking of the recognizance.