Opinion by

It would have been a good defence against this action if the defendant below had proven to the jury that the same subject matter in controversy in this suit had been adjudicated in a former trial between the same parties before a court of competent jurisdiction.

The plaintiff in error offered to prove by a transcript of a record of a court having jurisdiction and by parol proof that the consideration of the note was the fraudulent sale of a certain claim on the public lands, and that the question of fraud in the sale had been passed upon by a jury, who found in favor of the plaintiff in error.

*425Under our statutes the same defence can be set up to a promissory note as to any contract, written or parol, on account of fraud or failure of consideration, Rev. Stat. p. 453, H 5 and 6. The judge had his election to sue on the original promise or bring his action on the note. The plaintiff in error proposed to prove to the jury that an action had been instituted, on the original promise, and that the validity of -that promise and the consideration inducing it had been adjudicated in that action, and that the finding of the jury was conclusive evidence of the fraud charged in the defence.

The authorities cited by plaintiff’s counsel clearly show that it was competent for the plaintiff in error to prove the truth of his defence by the record of a former trial, in showing by parol or otherwise that the matters in controversy were the same. It may be that the offer of the plaintiff to introduce such evidence in bar of the action was informal, but its influence on the jury, if true, must have been to prevent a finding for the plaintiff below, or have a tendency to produce that effect. The suggestion of defendant’s counsel that the first trial may not have been on the defence sot up to the second action does not answer the record here, which shows that the same defence was set up in both actions. If the verdict in the first trial was not on the merits of the defence, but on the fact that there was an out-standing note, it could have been easily shown. We think the plaintiff in error should have been permitted to go to the jury with his defence, and that the jury should have been instructed to find on the questions, suggested in the defence, on the transcript of the record, and the parol proof. The proof offered would have a tendency at least to prove the defence, and the court below erred in ruling out such testimony. It is no answer that the first trial might not have been on the merits.

The defence of former recovery or adjudication can be as well taken advantage of under the general issue as by a special plea in bar. This seems now to be the more libera] *426practice. The judgment of the court below will be reversed, and a venire de novo awarded.

Judgment reversed.