The plaintiff, upon failing in his proof, has the right to elect to ;be .nonsuited, in a justice’s court, or the justice upon the trial has a right to nonsuit the plaintiff, if, in his judgment, he fails,.upon his own showing, to make out his case, either on the ground of the incompetency or the insufficiency of his evidence; and a judgment of the nonsuit in such a case is no bar to another action for -the same cause. (Bennel v. Hull, 10 Johns. 364; Clements v. Benjamin, 12 Johns. 299; Hess v. Beekman, 11 Johns. 457). ■ But whether the plaintiff elect to be nonsuited, or a nonsuit be granted by the justice, it must be done at the trial, or if a jury is called before the coming in of the verdict. If the cause is submitted to the justice, and he take time to make up his judgment, the cause is then sub justice upon the merits, and it is no longer in the power of the plaintiff to submit to a nonsuit, or' of the justice to grant it (Elwell v. McQueen, 10 Wend. 521; Hess v. Beekman, 11 Johns. 457), and were he under such circumstances to render a-judgment of nonsuit, it would be treated and might be pleaded as. a bar to a second action.
In this case it is impossible to say what was done. It is usual, and should be required in a justice’s return, for the justice to set forth the return of the summons, the day when the parties appeared and when issue was joined, the adjournment if any and the day when judgment was entered. But nothing appears by the return-except that the plaintiff rested, that no evidence was introduced by the defendant, whereupon, on the 1st day of September last past, judgment was rendered for the defendant; but whether the 1st day of September was the day of the trial or a day subsequent, is not stated. It is impossible, therefore, for us to say anything except that a judgment for the defendant being given, we must presume that it was given upon and after submission!
It is not material to pass upon the question whether the plaintiff was entitled to ask the witness as to the. declaration of Yan Allan respecting the wilting in question, for admitting that the testimony was competent to prove the assignment from Yan Allan, it was still but a link in the chain of the plaintiff’s *117title. . He offered; no other evidence, so had this evidence been admitted, he would still have been unable to proceed with his case.; We can do nothing, therefore, but affirm this judgment^ which, will- not conclude the rights of the parties under the agreement, inasmuch as it would be nó bar to an action of replevin or claim and delivery after the demand of the property. . -
Judgment affirmed.