
    FIFIELD v. SEEDS.
    
    On Certiorari to Gloucester Pleas, in matter of appeal.
    The Common Pleas, on appeal may set aside a nonsuit improvidently in the hurry of business, moved for by the appellee, and granted; but they may not in the absence of the other party, order on the trial at the same term.
    
      W.-N. Jeffers for plaintiff in Certiorari.
    
    Browning, contra.
    
      
       Argued and decided orally at May Term, 1840.
    
   Opinion of the Court, was delivered by

Hornblower, C. J.

This was an appeal from the court for the trial of small causes. Fifield, the plaintiff here, was plaintiff in that court, and appellant in the court of Common Pleas. When the appeal was called, the appellant not tendering himself ready to proceed, the court on motion of the appellee, ordered the plaintiff below to be nonsuited: whereupon the appellant left the court-with his witnesses. The appellee’s counsel, then discovering, that there had been a judgment rendered for him in the court below, for a small amount, (thirteen cents) moved the court to set aside the nonsuit, on the ground of mistake, which motion the court granted, and ordered on the trial of the appeal. The appellant’s counsel took no part in the trial, and a verdict was rendered and judgment thereon given for the appellee for sixteen cents, with costs. This proceeding was clearly a surprise upon the appellant. The court were right in setting aside the nonsuit, which had been, in the hurry of business, improvidently moved for and granted: but they ought not to have proceeded to trial in the absence of the party and his witnesses.

Let the judgment of the Common Pleas be reversed; and the record be remitted to that court, to be proceeded upon according to law.  