
    Gershom Starkweather vs. Lewis Loomis.
    Essex,
    
      March, 1830.
    Motion for a new trial.
    ThaUhe Court will grant anew trial, as for surprise, when the evidence has been excluded, which was offered in reliance upon a reported case.
    That the merits must not be sacrificed in such a case, but justice be done in the ternfs of a new trial.
   Hutchinson, J.

Said Loomis heretofore commenced his action of debt on judgement against Starkweather, before a justice of the peace, and the action was appealed to, and tried in, the county court, and exceptions were taken to the decisions there, and carried up to the Supreme Court; and, after a hearing Upon the exceptions, the Court came to a conclusion to affirm the judgement ; yet did not suffer the affirmance to be then entered, but permitted the defendant to move for a new trial On the ground of surprise. That motion was filed, and lay till this term for a hearing and for the preparation of affidavits. These have been procured, and the motion concisely argued without any written briefs. The ground of surprise was this. The action was debt, predicated upon a judgement recovered by default before a justice of the peace in JVeio-Hampshire. The counsel for Starkweather pleaded nil debet, relying upon impeaching the judgement as a foreign judgement, and, also, relying upon a case reported by Daniel Chipman, Esq. (see page 59, King, Adm’r of Ingersol vs. Van Gilder,) to shew that justice’s judgements do not come within the act of Congress ; and that this judgement of the justice in JVew-Hampshire, must be treated as a foreign judgement. But, upon the jury trial, the record of the judgement was produced, certified by the justice ; and the same contained the copy of the return of "the officer on the original writ, which return was of a service in Coos county, in JVew-Hampshire, by a deputy sheriff of that county, stating, as to notice, that he handed a summons to the said Starkweather, &c. and when said Starkweather, in defending this action, offered to impeach the original judgement, by showing that Loomis had no cause of action, this was objected to and rejected ; because he appeared by the record to have had regular notice of the suit in JVew-Hampshire, and ought to have made his defence there. This is the decision that was carried up on exceptions, and affirmed by the Supreme Court; 3ret the judgement of affirmance not entered, as before mentioned. Now, at this term, the affidavits of several of Starkweather's family, and of the officer who served the original writ in JVew-Hampshire, abundantly show, that the only copy of the writ handed to said Starkweather, was handed to him in Canaan, in Vermont,where !‘vec! f and nothing was shown of his submitting to the j’u-risdiction in New-Hampshire, so as to prevent his going into the’ merits of the original judgement. The Court consider that Stark-weather, who now moves for a new trial, has never had any trial) upon the merits of the original action brought in New-Hampshire He could have had no trial in Neiv-Hampshir.e, without submitting to the jurisdiction of a court out of his own state. This he-ought not to be compelled to do, .unless he-first submits, by giving' his creditor an opportunity to make service on him there. He has had no trial of those merits here ,; and yet-,.neither he nor his; counsel are. greatly in lault in the matter. It was creditable .to his* counsel, rather than the reverse, to treat as law, a reported decision of the Supreme Court of this state, that went the whole length ■of this case upon the point in question ; that is, that the judgement of a justice of a neighboring state, is to be treated as a foreign judgement. It is true, -that decision was made before the same subject had undergone so much investigation in the several states, as-has occurred since that time. But the counsel cannot be blamed by-this Court nor by their client, for not anticipa ting that this decision would be overruled. Yet such is the ease, and it is a misfortune to this petitioner, and his antagonist, that it could not have been known before so much money was expended in the suit.— But when the subject came to be examined upon principle, and in connexion with the statutes, that give large jurisdictions to justices of the peace, this Court have felt constrained to decide, that, though a justice of the peace has no clerk, yet, where the law re.quires him to keep records, he must be considered as his own. clerk; and, if he has no appropriate seal, he may use a common? seal, or possibly certify, that he has no seal attached to his office, as an excuse for his omitting to attach one rto his copies of his record.

The testimony now adduced is not in a technical sense newly discovered evidence, because the petitioner himself knew the fact, and knew who else would most probably remember it, also. 0» this ground a new trial could not be granted. But the fact is, so long as he and his counsel expected to be let into the merits of the original judgment without evidence to this point, upon the authority of the case cited, there was no reason why they should think of procuring testimony to this fact, of the copy’s being delivered in Vermont. It is the surprise occasioned in this way, that claims the attention of the Court.

Whether this testimony should come in under the plea of nil debet, or whether there should.be a special plea,-is not a ques-tlon before us, and the counsel may cbnsider that, and prepare as theyjudge most safe.

Wm. Mattocks, for Starkweather.

Young, of Colebrook, for Loomis.

A new trial is granted, on the terms, that Starkweather pay all taxable cost, so far back as to include the cost of the last jury trial; and that he take no cost so far back as to include that trial, should he eventually recover in the suit.

New trial granted.  