Hess v. Beekman

11 Johns. 457

Opinion

Per Curium.

The statute directs that, when the parties are properly before him, the “ justice shall proceed to hear and examine the allegations and proofs of the parties; and, within four days thereafter, give judgment thereon, with costs.”

It is settled, that a plaintiff may elect to become nonsuit in a justice’s court, after a trial by jury, and before verdict, as in the higher courts. (Platt v. Storer, 5 Johns. Rep. 346.)

It is also settled, that the justice is bound to give judgment according to the verdict; and that a plea of a verdict in a former suit for the same cause, is a good defence, although no judgment was made on it. (Felter v. Mulliner, 2 Johns. Rep. 181. Young v. Overacker, 2 Johns. Rep. 191.)

In this case, there was no jury on the former trial; but “ the merits were fairly entered into and investigated, and finally submitted to the justice.”

It best comports with the spirit and policy of the statute, to hold the plaintiff below concluded in the former trial.

Where there is a trial without a jury, the plaintiff may elect to become nonsuit at any time before the cause is finally submitted to the justice : but after it is so submitted, the statute is imperative, that after hearing and examining the proofs and allegations, the justice, within four days, “ shall give judgment thereon.” During the four days, while the cause is under advisement, the justice ought to hold no communication with either of the parties. They are not in court for any purpose but to receive judgment. The maxim, nemo bis debet vexari pro eadem causa, is applicable here.

Judgment reversed.