
    Close v. Stewart, 4 Wend. 95.
    In S. Ct., 1 Wend. 438.
    
      Pleading in Justice’s Court; Former Recovery.
    
    In this case the Supreme'Court held, that whenever the court can possibly intend that the merits have been fairly tried in justices’ courts, they will not examine or test the pleadings by technical rules, as to the formality of pleading; but, if it clearly appear that the plaintiff below had no right to recover, the court will reverse the judgment, notwithstanding a jury have found for the plaintiff. In this case, the action was commenced in a justice’s court, and removed into the Common Pleas by appeal. The defendant pleaded a former recovery for the same cause of action, and a payment of the judgment. The plaintiff replied, that the former judgment had been reversed on certiorari. The defendant to this rejoined, that the money paid on the judgment had not been recovered back. To which the plaintiff demurred, and defendant joined in demurrer.
   The Supreme Court decided that the plea was substantially a plea of payment; that the payment under the judgment, was a satisfaction of the original demand, whether the judgment was reversed or not, if the defendant elected not to call on the plaintiff to restore the money and directed it to be retained as a payment of the plaintiff’s demand ; and that the defendant could not afterwards rightfully call on the plaintiff to restore the identical money which he had thus applied. The court therefore reversed the judgment rendered on a verdict for the plaintiff on an issue of fact, holding that the defendant was entitled to judgment on the issue in law, the plea going to-the whole cause of action.

The Court of Errors held, however, that although the first judgment was reversed for defect of form merely, and restitution and costs of reversal, awarded to the defendant; yet that he could not plead the payment made by him on She erroneous judgment, in bar to a second suit for the original cause ,of action.

Judgment reversed.  