
    [*] HEPBURN against GASTON.
    OU CERTIORARI.
    Whether an account ia for tavern debts, is a question for the jury and not for the magistrate, on motion to nonsuit.
    It was objected to the proceedings below, that the action was for a tavern debt; and that the defendant below pleaded the tavern act; and that the justice refused to nonsuit the plaintiff. On the face of the [463] account filed, it appeared that the account was very much for liquor by small measure ; there were some charges for meals of victuals, and a considerable number for lodging; that the defendant, at the first meeting, said that he would plead the bar act, (which it was admitted was understood, in that part of the State, to mean the tavern act.) On the day of trial, the justice made the following entry in his docket: — “That the defendant pleaded a nonsuit, because the amount of the plaintiff’s account was more than two dollars, the plaintiff being a tavern keeper; the defendant filed no plea in writing on the return day of the summons; for which reason I did nof grant a nonsuit.” The cause was tried by a jury; and verdict and judgment for the plaintiff, $34.97.
   By the Court.

Whether these charges were- for a tavern debt or not, was a proper subject for the determination of the jury; the justice ought not, in such case, to nonsuit the plaintiff, but to let the facts be tried by a jury. It is, to be sure, the duty of the justice to explain the law to the jury, and charge them as to the law arising out of the facts in the cause. From the appearance of the account, there is reason to believe that the jury have erred; but we cannot perceive any legal ground on which we can reverse the judgment of the justice.

Judgment affirmed.  