
    [468] LORING against RAMSEY.
    ON OEETIOBAEI.
    Judgment obtained by a trick, annulled.
    It appeared by the affidavits taken in this cause that the plaintiff below, Ramsey, shortly before the trial, and the same day that the trial was had, informed the defendant below, the plaintiff in error, that he could not attend the trial, and that the defendant need not attend with his witnesses, for that no trial would be had. This was at Flemington, several miles from the place of trial; that in consequence of which the defendant did not attend the trial. The fact, however, was that the plaintiff did not attend the trial in person, but employed a licensed attorney to appear for him, and obtained judgment in the absence of the defendant. There was some controversy as to the fact; yet it satisfactorily appeared to the court as above, and that the defendant below had been completely surprised by the conduct of the plaintiff, and a judgment obtained against him in his absence, for one hundred dollai’S; and this on a very suspicious cause, of action.
    
      
      Mr. Maxwell moved the court to reverse the judgment of the justice on the above facts.
    [*] This was opposed by the counsel for the defendant in error, on the ground that the above facts, admitting them to be true, did not furnish a proper subject for the assignment of error.
   By the Court.

It is true, that surprise is not strictly assignable as error. If the justice’s court was a court proceeding, according to the course of the common law, the application ought to be made to that court. But the policy and legal propriety of the justices opening their judgments on the ground of surprise, may be fairly questioned, and in practice it is never done. The justice of this case calls for a remedy, which can nowhere be found but in the general superintending authority of this court over inferior jurisdiction; especially courts for the trial of small causes. We therefore, apprehend, that we shall be in the due exercise of our legal authority, in declaring the proceedings below,

Null and void.

Approved in Terhune v. Barcalow, 6 Halst. 38.

Cited in Combs v. Johnson. 7 Halst 244; Paterson & Ramapo R. R. Co. v. Ackerman, 4 Zab. 535.  