
    WADDLE, et al. v. ISHE.
    1. Where evidence is heard by a justice of the peace upon the merits in a suit before him for a trespass, but the cause is eventually dismissed by him for want of jurisdiction, this not being a decision upon the merits, is no bar to a subsequent suit for the same cause of action.
    Writ of Error to the Circuit Court of Fayette.
    Trespass for breaking the house and carrying off goods, by Ishe against Waddle, et al. The defendants pleaded not guilty, and a former acquittal of the same cause of action.
    At the trial, the defendants produced the warrant and proceedings in a suit brought against them by Ishe before a justice of the peace purporting to be a suit for damages for breaking the house, &c. in which judgment was given against the plaintiff for costs. The justice of the peace was introduced as a witness and swore, although evidence was heard on the merits, he dismissed the suit as having no jurisdiction over the same.
    On this state of proof, the defendants asked the court to charge the jury, that if the justice heard evidence on the merits of the cause, and afterwards took time to consider of the judgment he should give, this was such a trial on the merits as. would prevent a recovery in this action, although the justice dismissed the suit on the idea that he had no jurisdiction of it.
    This was refused, and the defendants having excepted, now assign the refusal as error.
    Huntington, for the plaintiff in error.
    Martin, contra.
   GOLDTHWAITE, J.

The utmost effect which can be claimed for the proceedings before the justice is, that prima facie the judgment pronounced by him would be considered as upon the merits. But its effect was entirely destroyed as soon as the further fact was disclosed that he dismissed the cause for the reason that his court was without jurisdiction. [Estell v. Tant, 2 Yerg. 467; N. E. Bank v. Lewis, 8 Pick. 113; Hughes v. Blake, 1 Mason, 519.]

Judgment affirmed.  