majority">RYLAND, J,

Prom tbe above statement, tbe simple question before us, arises on the action of the court below, in rejecting tbe evidence offered by defendant, Hudelmeyer, to show that the plaintiff, Hughes, in this suit, had been allowed a part of his demand, in an action by Hudelmeyer against him, as a credit. It seems that there were two suits between these parties, in one of which Hudelmeyer was plaintiff, and in the other Hughes was plaintiff. In the action in which Hudelmeyer was plaintiff', he had, in *63making out bis account against Hughes, given to Hughes credit for some $23 50. In this action Hudelmeyer obtained a judgment against Hughes, and Hughes appealed to the Circuit Court. In the suit against Hudelmeyer, Hughes obtained judgment and Hudelmeyer appealed to the Circuit Court. This last mentioned appeal was brought to trial in the Circuit Court first, the other appeal still pending.

In this state of the case, the trial on the appeal in which Hudelmeyer was appellant, he offered to prove by the record of the proceedings in the suit, in which he obtained judgment against Hughes, and in which Hughes had appealed, that the sum of $23 50, a part of Hughes’ demand against him, had already been allowed to Hughes, as a credit in Hudelmeyer’s suit against Hughes. Hudelmeyer proposed to prove the fact, by the record and by the testimony of the jury, who tried the suit. But the Circuit Court refused to let Hudelmeyer prove this, because Hughes had taken an appeal, and that appeal was still pending and undetermined.

When an appeal is taken from a justice of the peace, to the Circuit Court, a trial de novo is had. The merits of the case are again tried, and such judgment given as the court and jury deem just and right. The appellant has it in his power to dismiss his appeal, in most cases. Now, in this case before us, the refusal of the court below, to permit Hudelmeyer to show, by proof that a part of Hughes’ debt had already been allowed him in another action, might operate greatly to the injury of Hudelmeyer ; but such proof cannot tend to injure Hughes. He may, in one event, obtain a credit for the amount, and also obtain a judgment at the same time, for it against Hudelmeyer; thus making Hudelmeyer pay the same twice. Upon the Circuit Court’s refusal to let in this proof, Hughes obtained a judgment against Hudelmeyer for the identical demand for which he had already obtained a credit in Hudel-meyer’s suit against him, and in which he had appealed, thus obtaining a judgment in one suit and lessening the judgment against himself in another suit for the same demand. Now, after obtaining his judgment, let him dismiss his appeal, and we can see manifestly the injustice that would be done to Hudelmeyer. On the other hand, had the court suffered Hudelmeyer to proof the facts which ho proposed in this case, Hughes can in no event be injured. Let the proof reduce Hughes’ debt against Hudel-meyer ; then, on the trial of the other case, Hughes can show, that the amount has already been settled by the judgment of the court between them. The difficulty arises in Hudelmeyer’s giving credit on his account against Hughes ; and in taking judgment for the balance after the jury has allowed the credit; thus making his judgment less by the amount of the credit given; then Hughes suing and obtaining full judgment notwithstanding he has been allowed the credit. We think the court below committed error, in refusing to suffer Hudelmeyer to show the facts proposed by him in this case ; and for this error, the judgment of the court below must be reversed, and cause-remanded for further proceedings not inconsistent with this opinion.

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