Majority
p. 84Van De Veer against Stanton—Certiorari from a Justice's Court.
Headnote
defendant the made affidavit, tice was 1 mawitafSS’ a nonsuit; and the plaintiff of-fered that the statement of the justice might he received as legal evidence, to which the defendant refused to accede, and the justice non-suited the plaintiff, with costs, the judgment was reversed .on certiorari. .
Trespass, in the Court below, by Van De Veer against Sianion. After issue, the defendant made affidavit, that the Justice was a máterial witness for him, as lie was advised by his counsel, and verily believed, of which he was not apprize<^ hll after the adjournment; and moved for a non-suit. The plaintiff offered that the Justice might, on the trial, state
p. 85
any facts within his knowledge, which should be received as evidence, to which the defendant refused to accede.— Whereupon, the Justice non-suited the plaintiff, and gave judgment for the defendant, for his costs, although the defendant expressly waived all costs, and told the Justice he should ask none.
J. J. Danforth, for the plaintiff in error.
Fish Eacker, contra.
The Justice erred in non-suiting the plaintiff; and .leaving given judgment against him for costs, error lies.[1]
Judgment reversed.
(a) (a) Smith v. Suits, 2 John. Rep. 9 . Wilson v. Foree, 6 id. 110 . Schermerhorn v. Jenkins, 7 id. 373.