
    GEORGE LINZMAYER, PROSECUTOR, v. JOHN BAIRD, RESPONDENT.
    Submitted January 28, 1927
    Decided March 10, 1927.
    Appeals — Previous Judgment Alleged in Same Case — Held, That This Would Have Been Adequate Defense, But Return to Writ Does Not Show it, and That is Primarily Controlling.
    On certiorari.
    
    Before Justices Parkee, Black and Campbell.
    Eor the prosecutor, John P. Lloyd.
    
    For the respondent, Fred M. Burlew.
    
   Per Curiam.

The writ brings up a judgment recovered by Baird against Linzmayer in a justice’s court. The substantial ground urged for reversal is that the same plaintiff had previously recovered judgment against the same defendant for the same cause of action before another justice. That, of course, would have been an adequate defense if the former judgment had been set up and proved in the second action, but there is nothing to show that this was done. The return to this writ does not show it, and that is primarily controlling. Gory v. Jackson, 76 N. J. L. 387. In the moving affidavit for the writ, it is alleged that prosecutor moved to dismiss on the ground of the alleged prior judgment, but the moving affidavit lost its force when the writ was allowed, on the principle of Peer v. Bloxham, 82 Id. 288; and if this were not so> yet, neither in the affidavit nor in the depositions taken in the present cause without any rule of court and in attempted contradiction of the return, quite irregularly, as we think (South Brunswick v. Cranbury, 52 Id. 298), does it anywhere appear that any attempt was made to prove the former judgment; which, as an elementary proposition, was essential.

We find no legal cause to interfere with this judgment, which is therefore affirmed, with costs.  