The opinion of the court was delivered by
If, in the proceedings before Justice Tyler, the merits of the case were in issue and judgment rendered thereon, that judgment properly pleaded, is a bar to this action. The defendant sets forth in his plea that in that suit he was impleaded for not performing the very same identical promises, and each and every one of them upon which he is sued in this action, and that he recovered judgment for his legal costs. He does not aver that he recovered judgment as well on occasion of his performing, or not performing, the same identical promises and undertakings for which he was impleaded as for his legal costs and charges. It is not alleged in the plea that the trial was upon the-merits, and therefore the judgment set up therein is no bar to the present action. The judgment may have turned upon a question not involving the merits of the action. Had the plaintiff replied nul tiel record and the defendant produced the record of such a judgment as is set forth in the plea, such a record would have proved the plea and entitled the defendant to a judgment, although the judgment set up in the plea would have been no bar to the action. The plea is defective, the judgment below was correct, the same is affirmed and cause rema/nded.