Majority
p. 453Jones against Scriven.
Headnote
hi an action for deceit, in the sale of a certain <ír patent’right, the°‘ ^elendant fence, a former trial anti judgment in an action brought by him before a justice, against the plaintiff on a promissory note given for the purchase money, in which suit the present plaintiff set up Ihe deceit in the sale,as a defence against the note, and the same was considered by the justice, and a judgment given for the plaintiff, for the amount of the note; it was held, that the first trial and íonfpiet^bar^oIN error, on certiorari, from a justice’s court. Sen- , , . - , . , ven brought an action or deceit and -warranty against Jones, for selling the art of manufacturing pot-ashes, in a new and improved mode, which he represented to be of great utility; and to induce the plaintiff to buy the art, he affirmed that the ashes would melt easier, and make one quarter more than in the common mode, &c. The defendant, at the trial, gave in evidence a former trial in a suit brought by Jones against Scriven, on a promissory note given by Scriven to Jones, for the art and skill of making pot-ashes, fkc. at which trial Scriven proved, by two witnesses, that the patent or art was good for nothing; but the evidence preponderated in favour of the usefulness of the patent, and the justice, before whom the cause was tried, accordingly gave judgment in favour of Jones, for the note. On this testimony, the defendant below moved for a nonsuitwhich was overruled, and a Verdict found for the plaintiff, for 25 dollars.
The defence in the former suit on the note, was not by way of set-off, but a direct objection to the consideration of the note ; and the very point in issue in this cause, namely, the value or worth of the art or skill sold, was tried and decided before. This very evidence was received by the jury, and the justice ought to have advised the jury that it was a bar, and the jury ought so to have found it. The judgment below must be reversed.
Judgment reversed.