delivered the opinion of the court.
The plaintiff in error brought an action before a justice of the peace, against the defendants. Judgment was rendered against him, when the case was brought to the circuit court, where judgment was again rendered against him, for a balance due upon a matter of set-off of twenty-seven dollars.
The claim offered as a set-off, was a note, but it came out in evidence, that a judgment had been rendered upon it, before a justice of the peace. The plaintiff then moved the court to exclude it from the jury, which motion was overruled. This was erroneous. The judgment merged the note, and it was no longer the subject of a set-off, or of a new action. The only proper evidence then of the claim, was a transcript of the record. This is obviously the rule, in regard to the judgments, of all courts of record; and the statute seems to intend to place magistrates’ courts, in this respect, on the same footing. H. & H. 428. But whether this be so or no.t, the judgment at least has the effect to merge the note.
It seems that the judgment upon the note was, at one time, taken by certiorari, to the circuit court, and thence dismissed. The effect of this was, to leave the judgment of the justice in full force.
Judgment reversed and new trial granted.