
    The People, ex rel. Decker against Lynde.
    Oh return to an alternative mandamus, the defendant stated that the relator sued Turner before him, by summons returnable at 10 A. M.; and at 11, the defendant not appearing, the plaintiff declared, proved his demand to $50, ^ r , , . ' , T ’ ana withdrew. The defendant appeared in a few minutes, requested leave to plead, which the justice denied, unless he could procure the plaintiff to attend. He failed in persuading the plaintiff to return; but, on the same day, a warrant to be issued by the justice, at his, the defendant’s suit, against the plaintiff, on which he *was arrested, and brought before the justice on the same day, who then made, an order that the default be set aside, contrarJ to the plaintiff’s express objection. The terms were, that the defendant should plead forthwith, and go imme- , . , . , • - , diately to trial, or consent to an ' adjournment, at ■ the Plaintiff’s election. The plaintiff-withdrew, and refused to prosecute under such circumstances ; and the justice order judgment of non-suit. The return set' forth surprise on the part of the defendant, as the ground of interference; f ■ . . , . , and insisted that he (the justice,) had a right to set aside a default in furtherance of justice. ,
    A justice of the peace havheardr6a cause exparte, in the defendant’s absence, cannot, parties be sent, open the proceed to a without*8 plamtiff’s con-
    He is bound mentaccording to the proof, and give the plaintiff a biT^casVrequirmg a tranhe^réfusef *a mandamus will he commanding him to do S0,
    
      The motion now was for a peremptory mandamus commanding the justice to enter on his docket a judgment of 60 dollars; and-deliver a transcript to the relator.
    
      J. D. Woodward, for the relator.
   Curia.

We differ from the justice in the construction of his powers. It is true, that before the cause is brought to a hearing; he may generally let in the defendant to plead, and make his full defence; and if he appears even while the hearing is going forward, he may be received to give evidence; but never after the cause is heard and finally submitted, though, entirely ex parte. The justice is bound to hear the merits in all cases, before judgment against a defendant. There is no such thing before him, strictly speaking, as a judgment by default against a defendant; but always a trial, or a hearing in nature of a trial. Here is a proceeding, then, to grant a new trial, or something .in nature of it, even without pretence of irregularity. Inferior tribunals not proceeding according to the. course of the common law, do not possess this power, unless expressly conferred on them by the statute whence their authority is derived. The justice has the same power by the statute as to hearing, trying and determining as courts of record; but this does not include the authority to set aside or annul a proceeding once had before him, without consent of the party claiming the benefit of it. Clearly he cannot grant a new trial. The motion must be granted.

Buie for a peremptory mandamus. 
      
       See Waterman's N. Y. Justice, p. 165, et seq.
      
     