
    
      Brockway against Kinney.
    In a suit be-work*and labour,thede-fendant p)ea-ded in bar a fo*™e.r andtriallorthe same cause of -the former noUrand^lso for the same work for -which the se* ^^brought • but the jury, aUthesdleo^ tions and proofs, found a verdict for Peyote only, without paying any re-demand for worl5: andla-bor. It was held, that the fident bar*1*" The whole of demandintho former suit submitted to th?Ju.ry5 was their duty to decide on the w!l0^e'
    On the return to the certiorari in this cause, it appeared that the plaintiff in the court below, declared for work and labour,.in burning 300 bushels of limé. The defen- , , , ,11 , , dant below pleaded non assumpsit,- and gave notice, that he should prove that the plaintiff had before sued him for 1 1 the same matter, and recovered. There was a trial by jury, and the justice by consent of the parties, informed the jury that the same parties had a cause before him at a former time, in which Kinney was plaintiff, and decía-red on a promissory note, and also for the same work and labour, and that the jury in that cause, after hearing the allegations and proofs of the parties, found a verdict for the plaintiff to the amount of the note. One of the jurors in the former cause was then called, and testified, that the jury found a verdict on the note, and had no- , . tbing to do with the iime. 1 he jury in the present suit found a verdict for the plaintiff. Two errors were as- , 1 ' signed. 1. That the declaration did not set forth á sufficient cause of action. 2. That there had been a former recovery for the same cause.
    
      Mumford, for the plaintiff in error.
    
      J. L. Richardson, for the defendant in error.
   Per Curiam.

There is no weight in the first objection. The declaration is sufficient. The plea was substantially of a former trial for the same cause, and was a good bar, for the plaintiff declared each time for the same cause of action. It was not shown that the plaintiff aban-r doned the charge for burning the lime, before or at the trial. That charge of course went to the jury on the first trial, and took its chance with them. If they did not allow it, for want of sufficient proof, or for any other cause, it was the plaintiff’s misfortune. The verdict must be considered as conclusive between the same parties, in regard to the same matter; otherwise it would, in effect, be permitting one jury to review the decisions of another. If the plaintiff, at the first trial, had not chosen to hazard a verdict, he should have entered a nolle prosequi on that charge, or consented to a nonsuit. As it was made a part of the plaintiff’s demand, and submitted to the jury, it was their indispensable duty to pass upon it. It would be dangerous to permit jurors thus to separate the plaintiff’s demand, and give a verdict for such part only as they pleased. We are of opinion that the judgment below must be reversed.

Judgment reversed.  