
    Pendleton ads. Le Conte.
    ISSUE was joined on the 9th of June laft, and on the 19th, notice was given by defendant, that application would be made this term for a commiffion: notwithftanding which, on the 26th, the plaintiff gave notice of trial for the J uly circuit, at which time an inqueft was taken by default.
    
      B. Livingston now moved to fet it afide for irregularity.
    
      Harrifon for Plaintiff. The defendant having been obliged by the order of laft Term to eleft one of the two pleas, has feen fit to abide by the plea of nil debet; but no fuch plea can be received in this aftion, and it muft be confidered a mere nullity. The merits of any judgments rendered in a fitter State cannot under the Aft of Congrefs be examined here. Nul tiel record is the only plea that is admiffible. And as to the notice of the intended application for a commifbon, it ought not to operate to procure the defendant a delay, for it was his negleft that he had not applied laft Term.
    
      Burr in reply. Whether any teftimony involving merits can be admitted under any pica, or whether tlie plea of nil debet is proper in this aflion, are points not to be tried in this way. The application for a cornmiffion is in time, according to Rule IX. of April, 17 qo.
   Per Curiam.

Ilfue not having been joined till after the election was made in vacation, the defendant is in time by the Rule of April, 1796. On the other point, we are of opinion that the propriety of the plea is not examinable upon this motion.

Let the verdidt be fet aiide, and a cornmiffion iflue: the colls to abide the event of the fuit.  