2 Watts 14 | Pa. | 1833
It was offered to be shown that the note on which suit is brought had been previously sued in the name of one who was the holder at the time, and a judgment rendered on it for the defendant. This judgment seems to have been considered in the court below to be res inter alios acta, because the action in which it was rendered had not been brought in the name of the payee, who alone could sue, the note being payable in cabinet work, and consequently not negotiable to give an action to the holder. This is an ungracious objection doming from the party beneficially interested here, who was present at the trial there, and would doubtless have had the benefit of it, had not the defendant maintained his defence on the merits. If the former judgment can be brought to bear against him, it is pretty certain no injustice will be done, particularly if the first suit, as is probable, was brought in the name of a third person to elude the conclusiveness of the judgment if it should be adverse. The error in bringing the suit in the name of such third person is imputable to the plaintiff here, or to the justice r if the former, he should not be suffered to take advantage of it; and if the latter, the case falls within the principle of Caldwell v. Thompson, 1 Rawle 370, in which it was determined that the form of the suit may be changed on an appeal from a justice of the peace, provided the cause of action remain the same, and that the mistakes or slips of a justice are to be disregarded or corrected. Here no more is required to be disregarded than the formal change of the name of the plaintiff; and the only question is, whether the name of the actual party before a justice of the peace can be shown by averment and evidence. In regard to the proceedings of a court of record, perhaps it could not, as regards the legal party who must be disclosed by the record; but it is essential that there should be a different rule for proceedings before justices of the peace, from whom no more can be required than substantial justice, without respect for technical forms; and as they are not judges of a court of record, the truth of the case in respect to their proceeding's may be shown by parol,
Judgment reversed, and a venire de novo awarded.
