
    Meyer against M‘Lean, survivor, &c.
    THIS was an action for debt, on a judgment recovered in the court of common pleas, of the county of Ulster. The cause was tried at the circuit in Ulster, on the 2oth of June, 1806.
    The declaration was in the usual form. The defendant pleaded nil debet, andsubjoined thereto a written notice that the defendant would give in evidence under that plea, that an execution had been issued on the judgment which had been duly levied and paid to the sheriff.
    On the trial, after the record had been produced by the plaintiff, the defend ah t offered the special matter mentioned in the notice to his plea, in evidence, which was obiectedtoby the plaintiff. This point being reserved, the. . / ‘ . , r , , „ ’ jury, on the evidence, round a verdict for the defendant.
    A motion was now made to set aside the verdict, and for a new trial, on two grounds. 1. That the plea was not an answer to the plaintiff’s declaration. 2. If a good plea, it was not such a plea as would authorise the defendant to give any special matter in evidence under it.
    
      Fisk, for the plaintiff.
    
      L. Elmendorf, for the defendants.
   Per curiam.

By going to trial on the plea and notice, the plaintiff admitted the plea to be valid, as a general issue. The judge at Nisi Prius is not to decide on the-pleadings; and he was right in admitting the evidence. This is an application for a new trial; but why should we award anew trial, if the plea be bad ? A new trial is never granted for a defect in the pleadings. The plaintiff should have sought a different remedy.

Rule refused.  