
    Millard vs. Whitaker.
    Actions upon justices’ judgments rendered previous to 1830, may be brought at any time within twenty years from their rendition, notwithstanding the provision in 2 R. S. 295, § 18, subd. 2.
    The case of Fairbanks v. Wood (17 Wend. 329) adverted to, and the reporter’s ‘ abstract corrected.
    An action upon a justice’s judgment is not barred by a former recovery before a justice on the same judgment.
    If, in the first suit upon the judgment, a defence be interposed, followed by judgment against the plaintiff, this1 will bar a second suit. Per Cowen, J.
    So, if the plaintiff fail in the first suit to recover the whole of the judgment, e. g. by reason of part payment or a set off. Per Cowen, J.
    Where the judgment has been once used by the plaintiff as a set-off, and either allowed or disallowed, he cannot afterwards sue upon it. Per Cowen, J.
    Error to the Steuben O. P. Millard sued Whitaker in April, 1837, before a justice, and declared in debt on a justice’s judgment Pleas 1. The general issue; 2. A former recovery on the same judgment; and 3. The statute of limitations. The justice gave ■ judgment for the plaintiff. The defendant appealed, and on the trial in the C. P. the cáse was this: In July, 1827, the plaintiff recovered a judgment before a justice of the peace against the défendant for $29,55. In February, 1830, the plaintiff sued the defendant on the judgment before another justice, and recovered a second judgment for the amount of the first, which has not been paid. The plaintiff then brought this suit in April, 1837, on the first judgment. The defendant insisted that the statute of limitations was a bar; and also that the first judgment was extinguished by the second. The C. P. decided in his favor, and the plaintiff excepted. Verdict and judgment for the defendant. The plaintiff brought error.
    
      D. Rumsey, Jr., for. the plaintiff in error.
    
      D. McMaster, for the defendant in error.
   Bronson, J.

As the judgment on which the plaintiff sued was recovered prior to 1830, the present statute of limitations has nothing to do with the case. (Fairbanks v. Wood, 17 Wend. 329.) This is not the first time that the marginal note to that case has led to error. (Johnson v. Burrill, 2 Hill, 238.) As twenty years had not run upon the judgment, the action was in time.

The second judgment was of no higher nature than the first, and there was consequently no extinguishment. (Preston v. Perton, Cro. Eliz. 817; Andrews v. Smith, 9 Wend. 53, and the cases there cited.) There must be a venire de novo.

Cowen, J.

If the cases cited by my brother Bronson do not conflict with Schroeppel v. Jewell, (1 Cowen, 208,) and McGuinty v. Herrick, (5 Wend. 240,) there is no difficulty in saying that a judgment recovered on a judgment shall not work an extinguishment. It would be otherwise, I have no doubt, on a defence being set up against the first judgment, followed by a verdict for the defendant; and I think the rule of non-extinguishment must be confined to á full recovery of the whole- judgment (See Mumford v. Stocker, 1 Cowen, 178.) If any part of it be found paid or compensated by a set off, or if it be reduced for any cause, a second action cannot be sustained upon it.. So if it be used by the party as a set-off, and either allowed or disallowed. It is on this last ground that I think the cases of Schroeppel v. Jewell and McGuinty v. Herrick, are distinguishable. These, especially the latter, go on the ground that the - judgment had been, introduced and passed upon as a set-off. In such case it was held to be extinguished as effectually as if it had been paid, whether the jury allowed it or not; and the party afterwards taking out execution upon it was held to be a trespasser.

Judgment reversed. 
      
       That a former judgment which does not merge the demand on which it was rendered, is no bar to a subsequent suit on the same demand, see Cowen & Hill’s Notes to Phill. Ev. 958, and the cases there cited.
     