
    Hereth and Another v. Yandes.
    Res Adjudicata.—Pleading.—Suit on a note governed by the lavv merchant, by an indorsee against the maker. Answer setting up that the note was obtained by the payee from the maker by'fraud, and that the plaintiff had notice ' thereof. Supplemental reply, that in a cause pending in the same court, wherein the same persons were parties, founded on a promissory note given by the same maker payable to the same payee, given at the same time and as a part of the same consideration, and upon the same transaction, and for the same ' purpose, and indorsed to the plaintiff by the same, indorser, at the same time and upon the same consideration as the note sued on in-this case, issue was formed between the parties, in which the defendant set up, in effect, the same defense as in this suit, and the plaintiff pleaded, in effect, the same replies,, and ■ said cause was submitted to the finding and verdict of a jury on final hearing and trial, and the jury found for the plaintiff, and the court rendered judgment on the verdict; a copy of the record in said former suit being made part of this reply, the allegations of which it sustained.
    
      Held, that this reply was good on demurrer.
    APPEAL from the Marion Civil Circuit Court.
   Downey, J.

This was a suit on a promissory note similar to that in Hereth v. Meyer, at this term, 33 Ind. 511, executed at the same time and for the same consideration. Hartwell, the payee, indorsed it to one Lobdell, who indorsed it to the plaintiff below.

The only question raised by the assignment of errors is that relating to the overruling, by the circuit court, of a demurrer to the reply.

The defendants having set up, in their answer, as a defense, that the note was obtained from them by the payee by fraud, and that the plaintiff had notice thereof, the plaintiff replied that in a cause pending in the same court, wherein the same persons were parties, founded on a promissory note given by the same persons, payable to the same person, given at the same time, and as a part of the same consideration, and upon the, same transaction, and for the same purpose, and indorsed to the plaintiff by the same indorser, at the same time and upon the same consideration as the note sued on in this case, issue was formed between the parties, in which the defendants set up, in effect, the same defense as in this, suit, and the plaintiff pleaded, in effect, the same replications, and the said cause was sübmitted to the finding and verdict of a jury, on final hearing and trial, and the jury found for the plaintiff; and that the court rendered judgment on the verdict. A copy of the record in the former suit is made part of the reply, and shows that the same questions had been fully tried and determined, in a suit on another of the same lot of notes, between the same parties. We see no reason why the ruling of the circuit court on the demurrer was not correct.

McDonald, Roache & McDonald, P. W. Bartholomew, and Porter, Harrison & Fishback, for appellants.

L. Barbour and C. P. Jacobs, for appellee.

The judgment is affirmed, with two per cent, damages and costs.  