
    Pace v. Dossey.
    1. An amendment made in the Court below, pending the writof error, cannot affect the costs in the Supre'me Court.
    2. Plea that the matter in controversy has been determined by the judgement of a justice is not good, unless it shew conclusively that the trial before the justice was on the merits.
    Trover by Dossey against Pace, in Morgan Circuit Court, for a bank note of g50. Defendant plead,
    1. Not guilty.
    2. That in a suit by plaintiff against him before J. T. a justice of the pence of said county, judgement was rendered in his favor, which judgement remains unreversed or otherwise vacated, and which suit and judgement embraced and determined the matter of controversy involved in this suit.
    Issue on the 1st plea; demurrer to the 2nd.
    At the succeeding term  the cause was submitted to arbitration, and ihe award returned by the arbitrators was set aside. At April term, 1824, there was a verdict for plaintiff and a new trial awarded. At October term, 1824, verdict for plaintiff Si-60, and judgement. On the 20th of April, 1825, Pace sued out a writ of error. In the transcript sent up, the demurrer to the second plea did not. appear to have been disposed of. At July lerm, 1826, a certiorari was awarded to defendant in error, to bring upthe entry of the judgement of the Circuit Court on the demurrer. VVith the certiorari, was returned a transcript shewing that in the Circuit Court at October teim, 1826, “ agreeable to a motion made at last term, and continued until this term, and it appearing that at April term, 1825, it was adjudged that the demurrer to the second plea be sustained, and that the clerk omitted to enter said judgement.” Therefore, said judgement was then entered as of April term 1825.
    Pace assigned that the Circuit Court erred,
    1. In entering judgement nunc pro tunc when the matter omitted had been assigned as error.
    2. In sustaining the demurrer.
    3. If the first assignment be sustained, the record shews an issue in law not determined.
    Kelly and Hutchinson, for plaintiff.
    Clay and Campbell, for defendant in error.
    
      
       October 1~23.
    
   JUDGE SAFFOLD

delivered the opinion of the majority of the Court.

Tux authority and necessity for rendering judgement nunc pro tunc in cases similar to this, is well established by the practice of this and of other Courts; but it is objected that the entry was made after the writ of error had issued, and the omission had been here assigned as error. The authority so to amend the record as to make it correspond with the truth of the adjudication was the same, whether the writ of error had issued or not; but if there was a defect which would have been fatal, and it is corrected after the writ of error issued, the costs accruingon the .writ of error are to be adjudged against the party for whose benefitthe amendment has been made. But in this case there was an issue in fact involvii g the merits, and an issue in law on the special plea. The usual and almost invariable practice in the Circuit Courts is to determine the issue in law before trying the other, if both are relied on; and it often happens at the trial that the issue in law is withdrawn, wai<ed, or adjudged, and the entry is omitted by the clerk as in the present case. It is believed to be a correct rule supported by authority, and the previous practice of this Court to piesume,(if theiebe no shewing to the contrary,) that the issues in law were regularly disposed of in a manner corresponding with the judgement though the record may not shew it.

For these reasons, the amendment is deemed unimpor-taut to the decision on the writ of error.

As to the merits of the plaintiff’s demurrer to the second plea, the action was trover for a battle note of §50. Did this plea express, or sufficiently imply, that the matter in controversy was cognizable before the justice of the peace, or that the trial and judgement before him were on the merits ? If interest or damages were claimed, (as the presumption is,) the justice had not jurisdiction of the amount in controversy. The averment of the plea, that the suit and judgement before the justice, “ embraced and determined the matter in controversy involved by the suit in this behalf,” is in language too indefinite to shew satisfactorily that a trial was had before the justice on the merits. Had the suit been dismissed, or anon suit entered, the same language might with equal propriety have been used, unless a different construction is to be given to the averment, that the controversy was thereby determined ; and this would seem to involve a question of law which the party pleading had not the right to determine. A majority of the Court are of opinion that the plea should have shewn conclusively that the trial was on the merits. Judgement affirmed.

Judges Taylok and White not sitting. 
      
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