#### WILLIAM CARR v. CORNELIUS WOODLEFF.

Where the judgment, entered by a single magistrate, is susceptible of two constructions, that is, whether, it was intended as a judgment in the defendant’s favor on the merits, or, simply, for the costs as in case of a non-suit, it is proper to hear evidence in explanation.

Where the entry by a justice of the peace, trying a warrant on a former judgment was “ dismissed at tlie plaintiff’s cost,” and in explanation, he swore that on the trial before him, the judgment, sued on, was produced and considered by him — that he was of opinion that the same was vacated by the entry of an appeal on it — that for that reason, he made the entry, and that he intended it to be final between the parties, it was Held that the Judge below was right in instructing the jury, if the evidence was believed, it showed that' the judgment was on the merits and conclusive.

Action of debt upon a former judgment, brought from before a single justice by appeal, and tried before Caldwell, J., at Granville on the last circuit. Plea, former judgment.

The plaintiff produced in evidence a judgment, entered on a warrant, in favor of the plaintiff against the defendant, dated 22nd November, 1845 ; below this, was entered an appeal in regular form. There was evidence, that this appeal had been withdrawn at the instance, and by direction of the defendant.

The defendant then produced a warrant, issued on a former judgment, in behalf of the plaintiff against the present defendant, dated 2nd April, 1847, and an entry, dated lltli May, 1847, as follows: “ Dismissed at the cost of the plaintiff,” signed by J. M. Stone, a justice of the peace for Granville county. Stone swore that the judgment, now sued on, was produced before him, by plaintiff’s agent, on the trial of the warrant on 11th May; that there was no evidence before him of the appeal’s being withdrawn; that lie considered of the matter, and was of opinion that the appeal vacated the j udgment in question, and for that reason, he gave the judgment he did between the parties, and that he intended it to be final.

The plaintiff produced evidence, that the appeal taken on the first judgment, the one sued on, was withdrawn by the direction of the defendant.

*401His Honor instructed tbe jury, that i'f they believed the evidence of Stone, it proved there had been a judgment on. the merits of this demand in favor of the defendant, which barred the present action. Plaintiff excepted.

Yei diet for defendant. Judgment. Appeal.

Miller and Moore, for the plaintiff.

Graham, for the defendant.

PeaesoN, C. J.

In Bond v. McNider, 3 Ired. Rep. 440, the entry was, “dismissed at defendants cost,” and it was held this did not support the plea of former judgment, and could not be taken as the act of the Court; because, upon a trial, either by verdict, or upon the admission of the parties, the Court had no authority to enter such a judgment. If the Court dismissed the suit, the defendants were entitled to recover costs, and could not be made to pay costs; so, the entry could be no more than an “agreement of the parties;” and, under the plea of “ accord and satisfaction,” the question was open as a matter of fact for the jury, whether the agreement had reference to that particular action, or was intended as an accord of the cause of action, which was satisfied by the payment of the cosls of the suit then pending. To the same-effect, is Carter v. Wilson, 2 Dev. and Bat. 276. In our case-the entry is, dismissed at the cost of the plaintiff. This maybe taken as the act of the justice of the peace, and jprima facie it is so, because upon the trial, if he was of opinion that the evidence, offered, did not prove the allegation of the plaintiff, i. e., the existence of a former judgment, whieh was the-foundation of the suit, he had authority, and it was his duty,, to enter judgment in favor of the defendant, and the entry in-question, although not expressed iu formal and technical terms, was, in substance, a judgment that the defendant go without day and recover his costs. This distinguishes it from Bond v. McNider, and Carter v. Wilson, where the defendant was to-fay costs; which was inconsistent with the fact, that the judgment was in his favor. But a plaintiff may take a non-*402suit, or discontinue the suit, at any time before the verdict is -announced, when the case is pending in a county-or superior -court, or before the justice makes known his opinion where the case is pending before a single justice, and, thereupon the court, or justice, gives judgment in favor of the defendant for costs, which does not affect the cause of action, and leaves it open for another suit.

As this proceeding was before a single justice, and the entry was susceptible of two constructions, and,might be a judgment in the defendant’s favor on the merits, or simply for the costs, as in case of a nonsuit, and much allowance is made for the want of formality in the entries made by justices, it was proper to hear evidence in explanation, so as to to see whether it was a judgment affecting the cause of action, and concluding the plaintiff in respect to it, or was merely a judgment affecting the costs in the nature of a nonsuit; and we entirely concur with his Honor, that if the testimony of Stone was believed, which was a matter for the jury, the legal effect of the entry was to show a judgment upon the merits; for the justice heard the evidence in support of the plaintiff’s allegation of a former judgment, and having considered the same, was of opinion that the allegation was not proved, and gave his judgment accordingly. There is no error.

Pee Cueiam, Judgment affirmed.