The opinion of the court was delivered by
Barrett, J.This is audita querela to set aside a judgment of a justice in a suit between the same parties, in favor of the defendant for costs.
Upon the facts stated in the exceptions, it was the province and the duty of the justice in the original suit to hear and determine the question as to the defendant’s right to costs in that suit. The plaintiff had an opportunity to participate in the trial of that question, which trial would have proceeded at his own house — the place set in the writ — but for his own conduct, forbidding the justice to have a court there that day. The matter being pending when the justice was thus compelled to refrain from exercising his offi*480cial function and discharging his official duty at the place appointed, it was his right to adjourn to some other proper place. It was proved and found by the jury that he did “ openly adjourn, and announced it, so that the plaintiff, if he had been giving attention, could have known it.” This was all the justice was bound to do, in order to entitle him to proceed to the definitive adjudication of the matter pending before him ; and the finding-of the jury excludes all idea of any fraud or wrong towards the plaintiff.
It is proper to remark, in view of the urgency with which the plaintiff’s counsel insists on the effect of the alleged discontinuance by the plaintiff of his suit before the justice, that it was not in his power, by any such means as his evidence tended to show, to effectuate a discontinuance that would oust the justice of his authority to pass upon the question of the defendant’s right to costs in that case. As bearing upon that question, the subject of the tender, and how it was accepted, whether in full satisfaction and settlement, or only as a technical tender, and of the notice of discontinuance, and of the rights and duties of the defendant, in view of that tender, in respect to preparing for a trial of the case, were all proper to be brought before the justice on that occasion. The plaintiff having had full opportunity for “ his day in court” on all these things, cannot now be heard as to the grief to which his own misjudging waywardness has brought him.
The judgment of the county court is affirmed.