
    Charles B. Dufau, Plaintiff in Error v. Jean Henry Couprey’s Heirs, Defendants in Error.
    
    Motion to dismiss a wiit of error on the ground that one of'the matters put in issue in the court below, did not appear, by the record, to have been decided; Refused, as the issue which was found by the jury, made the plea upon which no issue appears to have been decided immaterial.
    ERROR to the district court of the eastern district of Louisiana.
    Mr Livingston,for the plaintiff in error
    ,stated that the record showed that the proceedings in the district court were according to the practice- in Louisiana, an.d not according to the course of the common law. There were two issues and a denial of the debt; and this was tried by a jury; the other on an allegation of a former recovery. The latter was an issue at law, and could not be submitted to a jury; but,was for the decision of the court.
    But the decision of the jury was given in general terms, and it cannot therefore be ascertained but that they found their verdict ori the plea of the former judgment, and not on the issue of fact. On an examination of the record, it will appear, that the former judgment did not decide the question between the parties.
    
      
      
         This case was decided al January term 1831.
    
   Mr Chief Justice Marshall

delivered the opinion of the Court.

There were two pleas by the defendant: 1, That the defendant was not indebted to the plaintiff. 2. That the subject matter of the suit was res adjudicata. The former plea was triable by the jury; the latter by the court., There was a trial by the jury of the issue, and the jury found a verdict for' the defendant. Upon the plea of “res adjudicata” there does not appear to have been any replication or denial, so as to make any issue to the court. There is nothing on the record to show that the question of res adjudicata was even submitted to the jury upon the trial. Their verdict, for aught that appeared on the record, was simply confined to the first and proper issue, triable by the jury. This issue being found for the defendant, the other plea became immaterial to the defendant. The court then cannot infer that it Was ever tried. There is then no error apparent on the record, and the judgment is afiirmed with costs.  