
    Walker, and Others v. Houlton and Another
    Assumpsit by JL. against B. for work and labour and goods sold. Plea, a former recovery. Replication, nvl tiel record. On the trial, B. produced the record described in his, plea, which was of an action of assumpsit brought by him against JL. in which' non assumpsit was pleaded, with a notice of set-off for work and labour and goods sold to a larger amount, &c., and in which B. recovered.
    
      Held, -that on this evidence the defendant was entitled, under the issue, to judgment. Held, also, that if the matters sued for by A. were not inquired into under the notice of set-off in the first suit, he might have replied that fact. ' ' .
    
      Monday, June 15.
    ERROR to the La Grange Circuit Court.
   Blackford, J.

Assumpsit for work 'and labour and goods sold and delivered. ' Houlton and Hughes were the plaintiffs. Damage, 300 dollars. Plea, a former recovery in a Court of common pleas in- the state of Ohio, in a suit brought by the present defendants, Walker and others, agaipst the present plaintiffs. Replication, nul tiel record.

On the trial, the defendants gave in evidence a transcript of the record described in the plea. The suit was assumpsit on two promissory notes, and for goods sold and delivered'. Plea, non assumpsit, with a notice of set-off of a demand of 1,000 dollars for work and labour and goods sold and delivered. Verdict and judgment for the plaintiffs in that suit.

Upon an inspection of the record, the. Circuit Court gave judgment for the plaintiffs, Houlton and Hughes.

The pleadings before us present the single question, whether there was’ such a' record as the plea described? The defendants produced the'record. There was no material variance between it and that averred in the plea. It showed that claims for work and labour .and .for goods sold and delivered, greater in amount than those now sued for, were brought forward by Houlton and Hughes as a set-off in that suit; and it must be presumed, under the present issue, that those claims -are the same with those now sued for, and that they were then litigated and determined.

When a defendant pleads a formér recovery in a suit by the plaintiff, and' the latter wishes to show that the causes of action are not the same, he' may deny their identity by a replication. 3 Chitt. Pl. 928, note.—Seddon et al. v. Tutop, 6 T. R. 607.—Bagot v. Williams, 3 Barn. & Cress. 235.—Snider et al. v. Croy, 2 Johns. Rep. 227. So, in the present case, if the matters sued for were not inquired into under the notice of set-off in the first suit, the plaintiffs might have replied that fact.

H. Cooper, for the plaintiffs.

D. H. Colerick and W. H. Coombs, for the defendants.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the replication set aside, with costs. Cause remanded, &c.  