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.