
    Tracy v. Reek.
    On appeal.
    
      Saturday, May 30.
   ASSUMPSIT. Two counts: One on a special contract; the other for money had and received.

Plea in abatement to the first count,—that prior to the commencement of the suit, the plaintiff sued the defendant in assumpsit before a justice of the peace; that the defendant pleaded in bar the same contract on which this count is founded, and averred performance; that the defendant obtained a judgment in that suit for 10 dollars, and the plaintiff appealed, which appeal is still pending.

Plea in abatement to the second count,—that prior to the commencement of the suit, the plaintiff sued the defendant in ássumpsit, before a justice of the peace, on the same contract on which this count is founded'; that the defendant obtained a judgment in that suit for 10 dollars, and the plaintiff appealed, which appeal is still pending.

Held, oh demurrer, that the first plea was bad and the second good.  