
    Robideau v. Ewing and Another.
    A judgment of a justice of the peace is set aside, by his granting a new trial in tho causo within tho timo allowed by law for the purpose.
    A scire facias on a justice’s transcript, &c., by alleging that after the granting of a new trial, the former judgment, which was against the defendant for a certain sum, was confirmed, must be understood to moan that a judgment was rendered against the defendant, on the new trial, for the samo amount with the first judgment.
    Friday, May 28.
    ERROR to the Allen Circuit Court.,
   Blackford, J.

Scire facias against Robideau to show cause why execution should not issue, &c. The scire facias states that the plaintiffs, on the 8th of January, 1831, recovered judgment in an action of assumpsit before a justice of the peace, against the defendant for 78 dollars and 70 cents; that an execution on the judgment issued on the same day; and that the plaintiffs also, on that day, obtained a transcript of the judgment. On the 11th of January, 1831, the constable returned the execution, no property found, and, on the next day, the plaintiffs delivered the transcript of the judgment to the clerk of the Circuit Court, who filed the same; that, afterwards, the justice granted to the defendant a new trial, and set the cause for trial on the 29th of January, 1831; that on the day last-named, the cause was continued until the 5th of February following, when the former judgment was confirmed by the justice; that the judgments are still in force, &c. General demurrer to the scire facias and judgment for the plaintiffs.

We think this demurrer should have been sustained. After the plaintiffs had filed the transcript in the clerk’s office, the justice granted a new trial. The scire facias does not state the day on which the new trial was granted, but we must presume, the contrary not appearing, that it was granted within the time allowed by law for the purpose. By the granting of the new trial, the original judgment was set aside. The scire facias states, that after the granting of the new trial, the cause was continued to a subsequent day, and on that day the former judgment was confirmed. We understand this to mean, that a judgment was rendered against the defendant, on the new trial, for the same amount with the first judgment.

D. H. Colerich and W. LI. Coombs, for the plaintiff.

H. Cooper, for the defendants.

It does not appear that any execution issued on the second judgment, or that a transcript of that judgment was taken from the justice, and recorded by the clerk of the Circuit Court, or filed in his office.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c. .  