#### JUSTICE & OTHERS, TO THE USE OF SITTON vs. JAMES D. JUSTICE AND OTHERS.

December 1842.

It is not competent for a party to raise an objection, because of the admission of testimony offered by himself.

Where there has been a trial on a warrant before a justice, and the entry made by the justice may well stand either for a nonsuit or a judgment on the merits, parol testimony to shew whether the merits were passed upon or not, is admissible.

The case of Ferril v Underwood, % Dev. 114, cited and approved.

Appeal from the Superior Court of Law of Henderson county, at Spring Term, 1842, his Honor Judge Bailey presiding.

This was a warrant, commenced before a justice of the peace, and brought by successive appeals to the Superior Court. The warrant was brought on a note. The defend’ ants pleaded a former judgment, and the sole question was, whether that was a bar to the plaintiff’s recovery. The entry by the justice upon the former warrant was as follows :

*59 “ May 12th, 1838. Judgment against the plaintiff for costs of suit, forty cents, by me.

P. BRITTAIN, J. P.” 9

Philip Brittain, the justice of the peace, who had tried this case, was introduced by the defendants as a witness. He stated that one of the plaintiffs and both the defendants were present at the trial; that the defendants did not deny the execution of the note, but said it had been settled. The plaintiff present said he had never authorized the suit to be brought. The witness stated that he gave judgment against the plaintiffs for costs, because of this declaration of the plaintiff, and because an assignment on the note was made by George Justice, and not by the payee, and went on to say he was not influenced, as he thought, by the allegation that the note had been settled. His Honor was of opinion, that, if the facts, as stated by the witness, were believed, this was not such a judgment on the merits as would bar another suit. A verdict and judgment having been rendered for the plaintiff, the defendant appealed.

Francis for the plaintiff.

Clingman for the defendants.

Daniel, J.

This was a warrant in debt on a single bill for fifty dollars and interest. The defendants pleaded “ a former judgment.” To support their plea, they gave in evidence a warrant' in debt, between the same parties, on the same bill, and a judgment on the same, in these words:

> “May 12th, 1838. Judgment against the plaintiff for costs of suit, forty cents, by me.

> P. BRITTAIN, J. P.”

The defendants introduced the justice as a witness, to prove that the merits of the controversy had been adjudicated in that trial. From what the witness deposed to, as set out in the case, the Judge was of opinion that the judg*60ment had not been given on the merits; that it was only a judgment of nonsuit. We are of the same opinion with his Honor. But it is now contended, that the court should have decided the question, upon the face of the judgment itself, whether it was one of nonsuit or on the merits, and that pa-rol evidence should not have been resorted to in aid of the construction. It is not competent for the defendants to raise an objection, because of the admission of testimony by them offered. Besides, it is well known, that the entries made by our justices of the peace, in most of their judicial proceedings, are very loose and informal; but this entry, we think, imports a judgment, according to the practice of the justices of this State, aided by our act of Assembly. In Ferril v Underwood, 2 Dev. 114, the court say: “ If the entry imports a judgment, then we think it is proper to prove by the justice or any other person, that the merits were gone into, if the testimony be consistent with the judgment.” We think that this judgment may well stand, either for a non-suit or a judgment on the merits; and, according to the above case, the testimony to shew whether the merits were passed upon or not, was admissible.

Per Curiam. Judgment affirmed.