— The action before the justice, was brought by Finley vs. Smith, for an account arising on simple contract. It is stated in the justice’s docket, [*] to be an action on the case. By the act of assembly, it ought to have been an action of - debt; and this is objected as error. Without looking into this case, I should have thought that this error did not tend to the substantial injury of the plaintiff in certiorari, and thereby the judgment protected by a late statute. But on looking into the case, I find that it not only tended to his injuxy, but that it actually did him a very material injury. This action was commenced the 27th of *733November, 1811. On the return day of the summons, the defendant Smith, appeared before the justice, and alledgcd in writing by way of defence, that this same matter had been tried before an other justice, viz. justice Craven, a few days before, in an action brought by Smith against Finley, and produced the record of the justice, with the state of demand, and judgment in favor of Smith, which fully verified the fact. But it further appeared, that the action tried before the other justice, was styled, and that properly, an action of debt. From a rule taken on the justice, to certify whether he did not over-rule this jilea of former recovery, in his answer he admits the fact, and assigns as a reason, that the action before justice Craven, was an action of debt, and that the action before him, was an action of tresjiass on the case. — It is true, this was a shameful quibble, and is, of itself, assigned as error, and rightly. I am of opinion, that the judgment be reversed.
Crane, for plaintiff. Kirkpatrick, C. J.— After stating the case, observed, that the merits had been well tried before justice Craven ; and the law is too eagle-eyed to be deceived by such refined craftiness.
Rosseee, J. — Of the same opinion.Judgment reversed.