Majority
p. 589Witherwax against Averill. ALBANY, Feb. 1827.
Headnote
The plaintiff declared on a judgment rendered in a jus* tice’s court. The defendant pleaded two pleas ; l.nultiel record, and 2. payment.A pfesofwa? declaration ón a jufl“>sntcómt! is not triable by the record, but by jury; and may be joined with a plea of payment.
J. L. Wendell, for the plaintiff,
moved for a rule that the defendant elect which plea he would abide by.
E. CoiOen, contra.
The ground upon which we compel a defendant to elect between a plea of nul tiel record, and other pleas, is, that their mode of trial is different; one being by the record, the others by jury. No such consequence follows here from retaining both pleas. The existence of a justice’s judgment is not determinable at bar, by the record. It ranks as a specialty. ( 16 John. 233 .) And the plea of nul tiel record, if it be good and capable of trial, in this case, must be tried by a jury.
Motion denied.