
    William P. Standifer vs. John Bush et al.
    A judgment rendered before a justice of the peace on a note, is a merger of the note; and the latter is not therefore the subject of a set-oif or of a new action ; the record of the judgment before the justice, is, it seems, the only proper evidence of the claim.
    Where a judgment was rendered by a justice, of the peace on a note, which was at one time taken by certiorari to the circuit court, and thence dismissed ; the effect of the whole proceeding was to leave the judgment of the justice in full force.
    On appeal from the circuit court of Monroe county; Hon. Francis M. Rogers, judge.
    This was an action of debt, instituted by William P. Standi-fer against John.Bush and Thomas Rayburn, before a justice of the peace, on a writing obligatory, executed by the defendants, payable to the plaintiff for the sum of forty-six dollars and eighty-seven cents, dated 4th November, 1840, and due on or before the 25th day of December, 1841. A judgment was rendered by the justice against the plaintiff, who removed the cause into the circuit court by certiorari. At the October term, 1846, of the circuit court of the county of Monroe, a verdict was rendered in favor of the defendant Bush, and a judgment rendered upon the finding of the jury against the plaintiff for the sum of thirty-one dollars and forty-one and a half cents.
    Upon the trial, the plaintiff introduced and read to the jury the note sued on, and then rested his case.
    The defendant then introduced and read to the jury the note filed with the plea of payment, which was in these words :
    “ On or before the first of March next, I promise to pay William P. Standifer fifty dollars for value received, this 9th day of April, 1834. John Gideon, [l. s.] V
    And also the following indorsement on the back, to wit:
    
      
      “ For value received, I assign the within note to Noah Bennett, this 19th day of August, 1839. W. P. Standifek.”
    Noah Bennett, a witness for the plaintiff, then proved that he had instituted a suit upon said note against the maker, Gideon, and the indorser, Standifer, before a justice of the peace of the county of Itawamba, and had obtained a judgment against them. The plaintiff then objected to the introduction of any further testimony with regard to this note, upon the ground that it had been merged in the judgment; but the objection was overruled by the court, and the witness was permitted to testify that he had sold the judgment to the defendant Bush. This witness further proved that by the contract between defendant Bush and himself, he was to receive the sum of twenty-six dollars, when Bush collected the judgment from Standifer.
    The plaintiff then proved by John S. Daniel and other witnesses, that they were acquainted with the general character of Bennett the witness, and from his general character, he was not entitled to credit, and they would not believe him upon his oath.
    The plaintiff moved for a new trial upon the following grounds.
    1. Because the finding of the jury is contrary to law.
    2. The court erred in permitting any evidence to go to the jury, in relation to the offset.
    This motion was overruled by the court, and an appeal taken to this court.
    
      John Goodwin, for appellant.
    1. It is insisted that, as a general rule, a simple contract debt is merged in a bond or covenant, taken for, or to secure the claim; because, in legal contemplation, the specialty is an instrument of a higher nature, and affords a higher security, and a better remedy, than the original dema«nd presented. In like manner is a bond, note, or covenant merged in a judgment. Chit, on Cont. 782, 783.
    2. When a judgment has been obtained in a prior action by the plaintiff against the defendant for the identical debt or demand, the contract or obligation, in respect of which the demand accrued, is merged by the superiority of the security thus acquired; and the creditor can no longer sue upon the original .demand, though it accrued upon a specialty. Chit. on. Cont. 786. If the cause of action in the two suits be identical, a judgment recovered is a defence, although the forms of action were different. Ib. 788.
    3. A promise to pay a debt of a higher nature is void. Miller v. Watson 5 Cow. 195; Ward v. Johnson 13 Mass. 148; Banorgee v. Hovey, 5 Ib. 11.
    4. No action can be maintained upon a promise to pay a judgment. Cowp. 128 ; 2 Term R. 100; 4 B. & P. 104; 2 Stra. 1027; Com. Dig. 207, (F. 1;) 1 Chit. PI. 94, 95, note b.
    
    The defendant offered in evidence, under the plea of payment, the note of Gideon to Standifer, indorsed by him to Bennett. If the proof had closed here, the-defence was not complete. It was necessary for the defendant to show something further before the indorsement of Standifer, which is nothing but a conditional undertaking, could be made to operate as a payment of the note sued on. The indorsement of Standifer, of the note on Gideon, is an ordinary one; it is not an absolute undertaking to pay at all events, and no other obligation was created by the indorsement, than that which the law imposed. It was necessary to show that Bennett had demanded payment of Gideon, the maker, and had also given Standifer, the indorser, due notice of his refusal to pay, before any liability would attach to Standifer. This they did not offer to do; but the court permitted them to prove that Bennett had instituted suit against Gideon and Standifer, before a justice of the peace of the county of Itawamba, and had obtained a judgment thereon. No judgment was offered in evidence to the jury, but the existence of the fact that a judgment had been obtained on said note against the maker and indorser.
    The defendants also proved by Bennett, the indorser of said note, that subsequently to the rendition of said judgment, the plaintiff had repeatedly promised him to pay the note, and that it should be allowed as an offset to the note sued on. In this the court certainly erred. Any promise by Standifer to pay the note which had been merged in a judgment was void, and would not revive the obligation of the contract, so as to enable the party to whom the promise was made, to maintain an action in his own name, or in his name for the use of another. The note had never been assigned by Bennett to Bush, but the judgment which had been obtained thereon.
   Mr. Justice Clayton

delivered the opinion of the court.

The plaintiff in error brought an action before a justice of the peace, against the defendants. Judgment was rendered against him, when the case was brought to the circuit court, where judgment was again rendered against him, for a balance due upon a matter of set-off of twenty-seven dollars.

The claim offered as a set-off, was a note, but it came out in evidence, that a judgment had been rendered upon it, before a justice of the peace. The plaintiff then moved the court to exclude it from the jury, which motion was overruled. This was erroneous. The judgment merged the note, and it was no longer the subject of a set-off, or of a new action. The only proper evidence then of the claim, was a transcript of the record. This is obviously the rule, in regard to the judgments, of all courts of record; and the statute seems to intend to place magistrates’ courts, in this respect, on the same footing. H. & H. 428. But whether this be so or no.t, the judgment at least has the effect to merge the note.

It seems that the judgment upon the note was, at one time, taken by certiorari, to the circuit court, and thence dismissed. The effect of this was, to leave the judgment of the justice in full force.

Judgment reversed and new trial granted.  