delivered the opinion of this court.
The issue presented by the pleadings in this case was, whether the judgment upon which the fi. fa. issued, and under which the alleged trespass was committed, was in full force and unreversed at the time of the issuing of the ft. fa. ? In withholding the evidence from the jury, which constitutes the ground of this appeal, the court below assumed to decide the very fact in issue, and determined that there was no valid *55judgment in existence. This was an usurpation of the functions of the jury and was therefore erroneous. Mitchell vs. Williamson, 9 Gill, 71.
Although the question as to the regularity of the proceeding of the two justices in striking out the judgment previously rendered, strictly speaking, may not be presented on this appeal, yet as the question may hereafter arise in another aspect of the case, this court feel warranted in saying, that from the circumstances as disclosed by the evidence in this record, they can discover no authority in law for such a proceeding. The analogy which is supposed to exist between the terms, so called, of the magistrates’ courts and the terms of the county courts, this court cannot discover from any thing contained in the act of 1835, ch. 201, by which these courts were created; but on the contrary, such a theory seems rather to be negatived by that act.
Judgment reversed and procedendo awarded.