
    
      Brothers vs. Higgins.
    
    Appeaia
    iirror to the Montgomery Circuit; Silas IV. Roiibi.vs, Judge.
    
      Testimony. Record.
    
    April 22.
    Record of dismissal of warrant upon the merits, by justice of the peace, competent evidence in bar of second action for the, same cause. -
   Chief Justice Robertson,

delivered the opinion of the court.

The plaintiff in error appealed from a judgment against him by a magistrate. On the trial without pleadings in writing m the circuit court, he. read a magistrate’s record of a warrant, between the same parties, and of a judgment dismissing the warrant before the date of the warrant in this case; and proved that the cause -of action in both cases was the same,and that the first warrant was dismissed after a trial on the merits. The circuit court excluded tire record after it had been read, and the plaintiff excepted. Whereupon, a verdict and judgment were rendered in favor of the appellee in the circuit court.

It is far from being clear that the evidence on the trial did not preponderate against the verdict.

This court would not, however, reverse the judgment on that ground. But the circuit court erred in excluding the record; it was competent evidence in-bar of this suit. The parol proof did not contradict it, and was admissible, especially to prove the identity of the cause of action; and even also to prove that, the first warrant was dismissed on the merits, because it only fortified the legal deduction from the record.

Hanson, for plaintiff; Denny and Triplett, for. defendant.

'Wherefore, the judgment is reversed, and the cause remanded for a new trial.  