The judgment of the court, (Eustis, C. J., absent,) was pronounced by
Rost, J.The pleadings in this case are so incomplete and inartificial, as to render it impossible to reach the merits.
Although there may be, in the former suit between the same parties, admissions of the present plaintiff, by which he is estopped from claiming the movables described in his petition, it is clear that, as the judgment in that case was one of nonsuit, the plea of res judicata cannot be predicated upon it.
The plaintiff took a bill of exceptions to the opinion of the judge, admitting evidence to prove two payments of $500 each, made by the defendants to tire plaintiff, although no plea of payment is found in the answer.
This evidence should not have been admitted without previously authorizing the defendants to amend, by making a plea which the justice of the case seemed to require. But even if this course had been adopted, the evidence of payment is not satisfactory to us, and we could only, in deference to the opinion of the district judge, have ordered a new trial. We think the ends of justice will be promoted by remanding the case, as it stands, with leave to both parties to amend.
It is therefore ordered, that the judgment be reversed, and the cause remanded for further proceedings according to law, with leave to both parties to amend; the costs of this appeal to be paid by the defendants.