¶1This 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.
¶2On 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.
¶3It 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.
¶4Agáin: 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.
¶5But 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.
¶6We also think the instructions to the jury were correct, for reasons already given above.
¶7The judgment below will therefore be affirmed.