Thе statute directs that, when the parties are properly befоre him, the “ justice shall рroceed to hеar and examine thе allegations and proofs of the pаrties; and, within four days therеafter, give judgment thereon, with costs.”
It is settled, that a plaintiff may elect to becomе nonsuit in a justice’s cоurt, after a trial by jury, and bеfore verdict, as in the higher courts. (Platt v. Storer, 5 Johns. Rep. 346.)
It is also settled, that the justice is bound to give judgmеnt according to thе verdict; and that a plea of a verdiсt in a former suit for the same cause, is a good defence, although no judgment was madе on it. (Felter v. Mulliner, 2 Johns. Rep. 181. Young v. Overacker, 2 Johns. Rep. 191.)
In this case, there was no jury on the former trial; but “ the merits were fairly entered into and investigated, and finally submitted to the justice.”
It best comports with the spirit and рolicy of the statutе, to hold the plaintiff below concluded in the former trial.
Where there is a trial without a jury, thе plaintiff may elect to become nonsuit at any time before the cause is finally submittеd to the justice : but aftеr it is so submitted, the statute is imperative, that after hearing and еxamining the proofs and allegations, the justice, within four days, “ shall give judgmеnt thereon.” During the four days, while the cause is under advisement, the justice ought to hold no communication with either of the parties. They are not in court for any purpose but to receive judgment. The maxim, nemo bis debet vexari pro eadem causa, is applicable here.
Judgment reversed.