Blanchard v. Richly — 7 Johns. 198

Majority

p. 198

Blanchard against Richly.

NEW-YORK,

Nov. 1810.

Headnote

In an action be-the6 defendant to a nonmil, be-i^no^returned at the time appointed for trial; but another veime may _ to trial be-sued; and if the defendant does not demand another venire, but fore the justice, it is a waiver bf the trial by jury. Where the de fe'ndant pleaded beforethe same justice for the same cause of ... action; and the justice stated, from his knowledge, that the plaintiff was nonsuited at such former trial, and that it was no bar, and the defendant did not deny the statement, but went to trial, he was held to be concluded as to the fact.

IN error, on certiorari, from a justice’s court. Richly sued Blanchard in the court below, in an action of assumpsit, tor work.

The defendant below pleaded a former trial, for the same cause of action, before the same justice. The jus_ 7 •> J tice, in his return, stated, that knowing the facts of the former trial, and that he had nonsuited the plaintiff, he declared the nonsuit to be no bar. The defendant then pleaded payment, and demanded a venire, which was issued, and delivered to the defendant. The cause was adjourned, and on the day of adjournment the parties appeared; but no jury came, nor was the venire returned, The defendant demanded a nonsuit,' unless the jury ap

p. 199

peared; but this was overruled, and the defendant did „ . not request another venire. The justice proceeded to try the cause, and gave judgment for the plaintiff, for 5 dollars, and costs.

The errors assigned were,

1. The defendant having pleaded a former trial, the justice had no right to overrule the plea for any cause not proved, but resting in his own knowledge.

2. That a venire having been issued, the justice could not afterwards proceed to try the cause.

The application of the defendant was to nonsuit the plaintiff on account of the venire not being returned. This motion was rightly overruled. The default would not entitle the defendant to have the plaintiff nonsuited. Another venire might have been issued, wjthin the case of Day and Wilber; (2 Caines, 137.) but this the defendant did not - ask, and his proceeding to trial would be considered a waiver of a trial by jury.

With respect to the other objection, it is true, the justice could not make any facts within his own knowledge the basis of any judicial decision. But on the defendant’s interposing the plea of a former trial, the justice answered, that the former trial was before him, and it was only a nonsuit, which would not be a bar to this action. The defendant did not deny the statement made by the justice. He must, therefore, be deemed to have admitted that the former trial which he had pleaded was one in which the plaintiff was nonsuited; and if so, the justice was correct that it was no bar to the present suit.

Judgment must accordingly be affirmed.

Judgment affirmed.