
    July, 1841.
    Alexander Levi vs. Thomas McCraney.
    In an action by assignee on promissory note, the finding of a jury, on the merits, would be a bar to a second suit by payee on same note.
    A verdict for the defendant, on the merits, is of the same effect, in this respect, as a judgment for plaintiff after it had been paid off and satisfied.
    No formal pleading is necessary before Justices of the Peace.
    On appeal from a Justice of the Peace, the record of the District Court showing that issue was there made tip, this court will presume it was such an issue as to try the merits.
    This was an action commenced before a Justice of the Peace, by Levi vs. McCraney, on a promissory note. On the trial before the Justice, a jury was summoned, and a verdict was rendered for the plaintiff for the amount of the note, interest and cost — and judgment accordingly. From this judgment the defendant appealed to the District Court. On the trial of the appeal, the verdict was for the defendant; and thereupon the attorney for the plaintiff filed his bill of exceptions and brought the case to this court.
    The bill of exceptions stated that, on the trial, the counsel for the defendant proposed to show, by a transcript from the docket of said Justice, that a previous trial had been had upon the same note, in a case wherein T. O. Martin was plaintiff and said Thomas McCraney defendant; that a judgment was rendered, upon the finding of the jury, by the said Justice, in favor of the defendant; and to prove by said transcript, as also by the testimony of said Justice, the identity of the note; which testimony was objected to, because the said transcript did not show a judgment between the same parties, but between the said defendant and a different plaintiff; which objection was overruled, and the defendant thereupon proceeded to show, by the transcript of the magistrate, that there was a former judgment in a suit upon said note, in a case in which T. 0. Martin was plaintiff and said McCraney defendant, and also to prove by P. S. Dade, the magistrate before whom both cases were tried, that the note was the same.
    The counsel for the plaintiff, after the aforesaid Objections were over-, ruled, argued to the jury the same objections, and contended that no judgment could be given in evidence in this case, or recognized by the jury, unless it were between the same parties; and the court charged the jury that, if they were satisfied from the testimony that the note sued Upon in this case was the same note sued upon in- the case of Martin vs. McCraney, that they should find for the defendant; but if, notwithstanding they should 'be so satisfied, they should still find a verdict for the plaintiff, it would be the duty of the court to set said verdict aside. To all of which the counsel for the plaintiff excepts, and prays the court Stc.
    The plaintiff in error assigned seven errors, to wit:
    
      First. The court permitted a judgment to be given in evidence between other parties not parties to the record in this case to operate as a bar to a recovery in this.case, without showing any privity of relation between the plaintiff in the former suit and the plaintiff in this case.
    
      Secorid. That it did not appear, from the return of the Justice in this case, that the defendant had put in a special plea in bar of a former recovery before the Justice in this case.
    
      Third. That it does not appear, from the Justice’s record, that any plea was put in in this case; and for want, therefore, of any plea, no judgment pf any kind could have been received by the District Court as a bar to a recovery.
    
      Fourth. That it does not appear that the jury who tried the case' in the suit between Martin and McCraney, passed their verdict upon the merits.
    
      Fifth. That it appears, from the bill of exceptions in this case, that the judgment in the case of Martin vs. McCraney was a judgment of nonsuit and for costs, and not a trial upon the merits.
    
      Sixth. That it appears, from the note on file in this case, that the plaintiff in this case was the payee in said note.
    
      Seoemth. That it nowhere appears that a judgment was ever had upon the note against McCraney the defendant, and that, in consequence of any sueh suit, he paid the same.
    And joinder in error.
    Beery, for the plaintiff in error,
    contended that the court is bound by the transcript of the Justice, and can not go beyond it. It appears therefrom that there was no plea put in before the Justice. Evidence of a former recovery could not be legally put in until there was a special plea averring it. Therefore, the evidence that was put in before the Justice, of a .former recovery, was illegal.
    A former recovery by endorsee is no bar to an action by payee. — - Cowen’s Treat..728; Ibid. 950.
    Crawford for defendant.
    It is settled that a jury can not give a verdict of nonsuit. This was a judgment on a verdict in the former suit. The papers show a sufficient privity between the endorsee, the plaintiff in the former suit, and the payee, the plaintiff in this suit. 17 Mass. Rep. 365.
    Berry in reply. The law will not permit a party to escape the payment of his honest.debts. The courts of New York are interpreters of the common law;' and they have said that a judgment against the endor-see shall not bar action by> payee.
   BY THE COURT.

This action was brought on a promissory note given by defendant to plaintiff. On the trial below, the defendant offered to prove that a former suit had been instituted on the same note by one T. 0. Martin, in which there had been a verdict for the defendant. This evidence was admitted by the court, which is the basis of all the errors assigned in the case.

On the trial in this court, a written agreement was filed by counsel, by which it was mutually admitted that Martin, at the time he instituted the first suit above mentioned, was the assignee and legal owner of the note. If such were tlie case, the finding of a jury on the merits would have been a bar to a second suit on the same note. If such were not the case, there is hardly any limit to the extent to which a defendant might be unjustly harrassed. A verdict for the defendant, on the merits, is of the same effect in this respect as a judgment for plaintiff after it had been paid off and satisfied.

It is contended, however, by the plaintiff in error, that this was not a trial on the merits, but that a hiere judgment of nonsuit was rendered. We understand the transcript differently. It states that the whole matter was submitted to the jury, who found a verdict for the defendant. This will be presumed to have been upon the merits, where nothing appears to the contrary.

Agáin: it is said that there is no evidence that the plea of a former recovery was put in before the Justice in the second suit. We do not think this was necessary. To require that nicety of pleading in those courts, would be incompatible with the objects for which they were organized. The statute does not require a written declaration. Even a verbal statement is not requisite, unless called for by the Justice. Why, then, should a plea be necessary? Without observing all the formalities required in courts of record, the parties appear before the Justice of the Peace, the plaintiff proves his cause of action, and the defendant sets up and proves any legal defence which he may have thereto.

But the transcript of the proceedings in the District Court shows that issue was there made up. What that issue was does not appear. Under such circumstances, and inasmuch, also, as no objection seems to have been' there taken to the introduction of the proof of a former recovery, on account of the same not having been pleaded, it will be fair to presume that such an issue was made up as would try the true merits of the case.

We also think the instructions to the jury were correct, for reasons already given above.

The judgment below will therefore be affirmed.  