
    FAYETTE SUPERIOR COURT,
    September Term, 1842.
    William Jack and John T. Davis vs. John Watson, John Simmons and Josiah N. Elder, Justices, &c.
    
      Certiorari.
    
    1st. Where several cases are brought in a Justice’s Court, upon notes given as the consideration of the same contract, the Superior Court will not interfere, unless it were set up as a matter of defence.
    2nd. If the defendant to actions in a Justice’s Court, intends to rely on a former recovery in defence, he must plead it, and if not insisted on in the Court below, this Court will not interfere.
    The facts in this case, as they appear by the petition of the defendants in the Court below, and the return of the Justices of the Peace, do not, in the opinion of the Court, call for its interposition.
    The grounds upon which it is alleged that error was committed, are :
    That the aggregate amount of the notes sued on, exceed the sum of thirty dollars ; and,
    That the notes sued on have been prosecuted to judgment between the same parties in a former suit.
   What may be the opinion of the Court m regard to the first ground, is not now material: because it does not appear from the return of the Magistrates, that a defence of that sort was relied on at the trial. If the defendants in the Justices’ Courts rely on the want of jurisdiction of sums amounting in the aggregate to more than thirty dollars, which spring out of the same contract and between the same parties, as they insist was the case here, they' should have pleaded their exceptions in a regular and legal way. It does not appear by the return of the Magistrates that they relied on any such defence.

In regard to the second ground : it was competent for the defendants to have pleaded the former recovery, in bar of the second actions, but it does not appear from the return, that they did rely upon any such plea*

The certiorari is therefore dismissed, and the proceedings below Confirmed.

WILLIAM EZZARD, j, s. c. c. o<  