By the Court,
Pratt, J.This cause, as appears, was brought into the Court below-by certiorari to the County Court, sued out by the defendants in error. The only grounds upon which an allegation of error was founded by them, in their affidavit for the allowance of the writ, were, first, “ that the County Court erred in allowing the plaintiff to proceed with his action, without having first paid the costs on setting aside the nonsuit;” and secondly, “ that the County Court erred in rendering a judgment on the merits for the plaintiff &c.”
These are the only grounds of error alleged, and upon them the case must have been decided by the Circuit Court, as it could not have been properly decided on any other than those assigned in the affidavit; and upon these same grounds-alone, the case must be reviewed and decided by this Court., It appears by the record, that after the Justice’s return to the appeal taken from his judgment, was filed in the County Court, the defendants gave notice of trial for the first day of the next term, on which day, the plaintiff not appearing, a judgment of nonsuit was entered in the cause, which was afterwards, on affidavits and motion, set aside on payment of costs. That subsequently the parties entered into a stipulation in writing, and placed the same on file, by which they unconditionally agreed to continue the cause until the first day of the next term, and then on that day try it. This was the day on which the Court allowed the plaintiff' to proceed with the cause without first paying the costs awarded in setting aside the judgment of nonsuit. In doing this, the *614' Gourt was correct. The defendants had the right to waive the prior payment of these costs, and by entering into the ‘ agreement to try the cause on that day, without any reservation whatever, did legally waive it. The stipulation was voluntarily entered into, and the parties were alike bound by it. The Court could neither annul or in any manner alter it, or relieve the parties, or either of them, temporarily or otherwise, from any of its terms or conditions. But this is not all, touching’this assignment of error. It further appears by the record, that at the time of entering into the stipulation, the defendants proposed to waive the payment of these costs, if the plaintiff would give them new security for the payment of the costs in the suit; which was agreed to by ■ the plaintiff, who accordingly procured "William Hemingway and John S. "Watkins, to enter into an agreement to that effectj the defendants acknowledging themselves satisfied with their pecuniary responsibility. In view of these facts, it -is somewhat extraordinary that this first ground of error should have been incorporated into the case, as there is nothing for it to stand upon.
The second ground of error, that “ the County Court erred in rendering a judgment on the merits in favor of the plaintiff” is, in view of the conflicting testimony in the case, equally novel as the first. It constitutes an allegation of error in fact, and not in law. It is the allegation of an error which can only be determined in this case by reviewing, weighing and balancing the conflicting testimony of all the witnesses introduced and examined by the respective parties on the trial of the cause in the County Court. And this cannot be done, either by the Circuit Court on certiorari, or by this Court on error. To do so would be neither more nor less than trying the cause over on conflicting testimony, first in the Circuit Court, and secondly in this Court, and if this can be done on error in this case, it follows as a necessary and legal consequence, that it can be done in every other case.
*615But discussion is unnecessary; the principle is too well settled in this, as well as in other States, to require it. - That the testimony in the case is conflicting as well in relation to the damages having been included in the settlement for the taming, as on every other point litigated in the cause, will clearly appear by an inspection of the record.
The particular ground upon which the judgment rendered by the County Court in the cause, was reversed by the Circuit Court, of course does not appear. But after a . full and thorough examination of the record returned to this Court, no substantial error in law, either in the proceedings or judgment of the County Court, which could have in the least affected the merits of the controversy, can be discovered. The judgment of thé Circuit Court therefore, nrast be reversed, and that of the County Court aflirmed, with costs.'