
    
      Pendleton ads. Le Conte.
    
    ISSUE was joined on the 9th of June last, and on the 19th, notice was given by the defendant, that application would be made this term for a commission : notwithstanding which, on the 26th, the plaintiff gave notice of trial for the July circuit, at which time an inquest was taken by default.
    
      B. Livingston
    
    now moved to sét it aside for irregularity.
    
      Uarison, for the plaintiff.
    The defendant having been obliged by the order of the last term to elect one of two pleas, b.;s seen fit to abide by the plea of nil debet; but no such plea can be received in this action, and it must be considered a mere nullity. The merits of any judgments rendered in another state cannot, under the act of Congress, be examined here, JVul tiel record is the only plea that is admissible. And as to the notice of the intended application for a commission, it ought not to operate to procure the defendant a delay, for it was his neglect that lie had not applied last term.
    
      Burr, in reply.
    Whether any testimony involving merits can be admitted under any plea, or whether the plea of nil debet is proper in this action, are points not to be tried in this way. The application for a commission is in time, according to Rule IX. of April, 1796.
   Per Curiam.

Issue 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 verdict be set aside, and a commission issue : the costs to abide the event of the suit.  