
    Clark v. Barnes.
    On appeal from a justice of the peace, where it appears from the transcript that there was a trial before the justice, on the merits, it will be presumed that there was such a denial of the cause of action, as to put the party upon proof of his claim.
    Where on the trial of a cause appealed from a justice of the peace, after a jury was called, and after the plaintiff had introduced his testimony and rested his case, the defendant discovered, for the first time, that the transcript of the justice was incomplete, in not showing that the defendant, on the trial before the justice, denied the plaintiff's cause of action, and that the justice had failed to send up to the district court a set-off to the plaintiff’s account, filed by the defendant; and where without objection being made, the justice of the peace was called, and stated to the court, that the defendant did, on the trial before him, deny the plaintiff’s account, and that he filed at the same time, a set-off to the plaintiff’s demand, all of which he had failed to certify to the district court, and thereupon the defendant asked the court to permit the transcript to bo amended, which was refused ; and where the jury returned a verdict for the plaintiff for seventeen(dollars, and the defendant moved the court for a new trial, which motion was supported by the affidavit of the justice, stating the denial by the defendant of the plaintiff’s account, on the trial below, and also, that he filed a set-off to the amount of twenty-three dollars, &c., and which motion was overruled and a new trial refused; and where it appeared from the transcript of the justice, that the plaintiff’s demand against the defendant, was twenty-two dollars, for services rendered as a physician; that on the day of trial the parties appeared, and defendant “ filed his set-off, for four meals charged to plaintiff and son, making eight meals at tweive and a half cents, making one dollar and seventy-five cents; and allowing the plaintiff for “The Journal," ono dollar; and that after examination of the witnesses, and hearing the allegations and proofs of the parties,” the justice rendered a judgment against the plaintiff, in favor of the defendant, for seventy-five cents and costs of suit; Held, That the court • should havo sustained the motion and granted a new trial.
    
      
      Appeal from the Monroe District Court.
    
    Friday, October 15.
    
    This was a suit on an account, originally brought before a justice of the peace, and taken by appeal to the district court. In the district court, a jury was called; and after the plaintiff had introduced his testimony, and rested his cause, the defendant discovered for the first time, that the transcript of the justice was incomplete, in not showing that the defendant, on the trial before the justice, denied the plaintiff’s account;. and that the justice had failed to send up to the district court, the set-off filed by the defendant to the plaintiff’s account. The justice of the peace being called, and no objection being made, he stated to the court, that the defendant did, on the trial before him, deny the plaintiff’s account, and that he filed at the same time, a set-off to the plaintiff’s demand, all of which he had failed to certify to the district court. The defendant thereupon asked the court to permit the transcript of the justice tobe amended, which application was denied. The trial then proceeded, and the jury returned a verdict for the plaintiff for seventeen dollars; for which amount judgment was rendered.
    The defendant moved the court for a new trial; and in support of the motion filed the affidavit of the justice who tried the cause, to the effect that on the trial before him, the defendant put in a denial of the plaintiff’s account, or cause of action, and also, that the defendant filed a set-off to the plaintiff’s demand, to the amount of twenty-three dollars ; and that he, (the justice), had failed to enter the said denial on his- docket, and had failed to send up the plaintiff’s account with the papers of the cause. This motion for a new trial was overruled. The transcript of the justice’s docket shows, that the plaintiff’s demand against the defendant was twenty-two dollars, for services rendered as a physician; that on the day of trial the parties appeared, and defendant “ filed bis set off, for four meals charged to plaintiff and son, making eight meals, at twelve and a half cents — making one dollar and seventy-five cents; and allowing plaintiff for “ The Journal,” one dollar; and after examination of the witnesses, and hearing the allegations and proofs of the parties, it is considered that said Joseph Barnes, the defendant, recover of the said plaintiff, seventy-five cents, and costs of suit.” This is all that is shown by the transcript. The defendant appeals.
    
      Kelsey Kelsey, for the appellant.
    
      T. B. Perry, for the appellee.
   Stockton, J.

We think it was not neccessary for the transcript of the justice to be amended, to show that the plaintiff’s claim was denied on the trial before him. Where there was a trial on the merits, it will be presumed that there was such a denial as put the party upon proof of truth of his claim. It may well be doubted whether, the application to amend the transcript in other particulars, considering the circumstances under which it was made, was not properly overruled. We are, however, inclined to the opinion, that the motion for a new trial should have been sustained. From the transcript of the justice, sent to the district court, it would seem that the set-off filed by defen. dant, on the trial before him, amounted to only one dollar and seventy-five cents. The justice states in his affidavit, that the defendant in reality filed a set-off amounting to twenty-three dollars. The filing of this set-off is not shown by the transcript, and the same is not sent up by the justice to the district court. It might ■ be questionable whether, upon the state of facts as shown by the transcript, the defendant could in the district court, have introduced any other set-off, than that set forth in the transcript, amounting to one dollar and seventy-five cents. Under the circumstances, we think justice requires that a new trial should have been granted, to enable the defendant to have the docket and transcript of the justice amended so as to show the true amount of the set-off introduced, on the trial before him. This much was neecessary in order to a trial ou the merits, .and to insure that the same cause of action be tried in the district court, that was tried before the justice. If it appeared to us, that the defendant had been permitted to prove up all of his set-off in the district court, as offered before the justice, we should be inclined to affirm the judgment; as the contrary, however, appears, we think the judgment should be roversed? and a new trial awarded.

Judgment reversed.  