Conine v. Scoby , 5 N.J.L. 510 ( 1819 )

Rossell J.

On examining the transcript of justice Drake, and the accompaying papers, it appears; that two summonses were issued on the same day, the 15th of September 1817, one by justice Babbit, at the suit of Conine, against Scoby, returnable on the 22nd of the same month. The other by justice Drake, at the suit of Scoby, against Conine, returnable on the 20th, two days previous to the one first mentioned. That on the 20th the parties appeared before jiistice Drake, the plaintiff filed a statement of his demand and the defendant his plea; the plaintiff prayed an adjournment until the 27th instant, which was granted, and on that day the parties again appeared, and the cause was adjourned until the 1st of October, at the request of the defendant, and on his promise to pay the cost of the day and to produce a paper in his possession, belong, ing to the plaintiff, and called in his declaration an order or bill of exchange, and on which this action was founded.

*That on the 1st of October, the third meeting of the parties before justice Drake took place, and after the jury had been severally qualified and the plaintiff had stated his demand, arising on the order above mentioned, the defendant produced, under the hand and seal of justice Babbit, a transcript from his docket, by which it appeared ; that on the 22nd of September, two days after the same parties had been before justice Drake, they appeared before him, and the plaintiff, Conine, filed a statement of his demand, and the defendant, Scoby, his plea. The cause was then adjourned until the 26th instant, at which time they again appeared, ready for trial. The defendant admitted the plaintiff’s demand, and then called a witness to prove the order mentioned in his plea. This was objected to by the counsel for the plaintiff, and rejected by the justice, who gave a judgment in favour of the plaintiff for 7 dollars, 56 cents. On this transcript, the defendant now prayed a nonsuit; which motion was overruled by the justice, Drake, and the trial wTent on. The witnesses of both parties were examined, and verdict and judgment entered in'favour of plaintiff for 23 dollars, 23 cents. In this there was error. The question of debt had already been decided between the parties by justice Babbit, by their consent, and should have estopod the after-proceedings. Justice Babbit might have erred in rejecting the testimony offered by the defendant before him, to prove the contents of the bill in the hands of the plaintiff, but until his judgment could have been got rid of, the parties were concluded by it.

The judgment of justice Drake must therefore be reversed.