
    Witherwax against Averill.
    ALBANY,
    Feb. 1827.
    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.
   Curia.

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.  