
    DONATIAN BINSSE v. MATTHEW S. BARKER
    A judgment obtained by fraud or surprise will be set aside.
    This was an action of trover and conversion, brought in the court for the trial of small causes, and judgment rendered in favor of the plaintiff in the absence of the defendant. The proceedings below were removed into this court by certiorari, and several reasons filed for the reversal of the judgment. The one noticed by the court, in their opinion, was the sixth and is in these words. “ Because the parties agreed, that the day for trial should be settled, and fixed by their counsel, after their return from Trenton, and in violation of such agreement, the plaintiff below without notice to the defendant, proceeded to trial and judgment in his absence.” A statement of facts agreed upon by the counsel of the parties and read on the argument cf the cause fully sustained the matters contained in this reason.
    
      E. B. D. Ogden, for the plaintiff in certiorari.
    
      A. S. Pennington, for the defendant.
   By the Court.

Without expressing any opinion as to the sufficiency of the statement of demand, the court reverse the judgment below for the sixth reason filed. It is apparent, that there was an honest agreement between the parties, that the cause should be adjourned, and yet the plaintiff below Avithout notice to the defendant and in Adolation of this agreement, proceeded to trial, and obtained judgment in his absence. Whether the agreement was precedent or subsequent, can make no difference, the defendant has been injured by the want of good faith on the part of the plaintiff, and this court will not sustain a judgment under such circumstances. This court has in several cases reversed judgments, obtained by fraud or surprise.

Judgment reversed.

Cited in Silvers & Brittin ads. Reynolds, 2 Harr. 278.  