
    
      Hiram Burnham and Daniel Mayo vs. Gilbert Brewster.
    
    After a judgment by default in an action on promisory note given for the right of making and vending a spinning machine, the court will grant1 a new trial if it appear that the machine is of much less value than represented to be by the patentee at the time of the sale of the right and execution of the note, and that its inutility was not sufficiently known by the defendant at the time of the judgment, to afford him any prospect of a valid defence.
    In such case new trial will be granted, on condition, that the petitioner recover no past cost in the action, nor the cost of the petition : and if the petitionee elect to enter a nonsuit in the original action at the next term after new trial is granted, he may do so without paying cost.
    In such case also the court will not permit the decision granting a new trial, to be recorded, unless the petitioner enter into a rule, that any judgment obtained by the sheriff against the person who had receipted to him the property attached on the orignal writ, and any security taken by said sheriff to secure the payment of said judgment, should not be affected by granting a new trial; but remain as security for the payment of any sums said petitionee may recover on final trial in the original action.
    
      This was a petition for a new trial in an action defaulted in the County Court at their March Term, 1826. Said petition was brought directly to this court pursuant to the provisions of a late Statute of this state.
    The ground of this petition was that the note of $465 on which the original action had been brought, was given for the balance of $1500, contracted to be paid by the petitioners for the right of making, using and ven ding in the counties of Chittenden, Franklin and Grand Me, Brewster’s domestic self adjusting spinner, for spinning wool from the roll: — that they were induced to make the purchase by the false and fraudulent representations of said Brewster with regard-to the operation of said machines and their use in spinning : — that the machine is of no value whatever, and that its want of utility was not known to the petitioners till after' said judgment was rendered by default, but has since been fully discovered, as they expect to show by affidavits.
    It appeared that property had been attached on the original writ and receipted to the sheriff, and a judgment obtained by the sheriff on that receipt, and a mortgage security given to secure the payment of that judgment.
    Several affidavits were adduced by the petitioners tending to show that the agent of Brewster, who made the contract in his behalf, before and at the sale to the petitioners, recommended the machine in the highest terms for its utility both for spinning fast and making die yarn good: — that the said agent applied to men of influence to attend at the time and place appointed for making-sales of said patent right and make offers to purchase, not with a view of purchasing, but to induce others to purchase, and that the petitioners did purchase on the recommendations of the agent of Brewster; and that the note in question was given for part of the purchase money ; and that, upon a full experiment, the right is of little or no value. And the petitioners filed their own affidavits, stating that they let judgmentgobydefaultsupposingthat the machine would prove as good as recommended, and that upon a full experiment since made it proves otherwise.
    
      Robinson, Fan Ness and Allen, for the petitioners, contended that diese affidavits furnished sufficient ground for granting a new trial, or for setting aside the default and letting in the defence to the action now stated in the petition.
    
      Bailey, for the petitióñee, contended that to entitle the petitioners to a new trial they must prove to the satisfaction Of die court that the evidence which they pretend to have discovered since the judgment üpoñ the original note, would be sufficient to prevent a second recovery upon the same at another trial, and that they have really discover* ed this evidence since the rendition of the aforesaid judgment, and that they could not by proper diligence and inquiry, have a* vailed themselves of it in the former action.
    The evidence is extremely vague in its character. It does not show a failure of consideration. The note 'was given, not for the machine merely, but for the exclusive right of “building, using and vending,” the said machines in the counties of ChiiteniJenj Franklin and Grand Me. Burnham does not appear to have been a manufacturer, and his chief object must have been to benefit himself by selling out the above mentioned right within his prescribed limit's. There is no proof that he attempted to do this. If he suffered any failure or loss in building, using or vending, it did not result from any fault in the principle or structure of the machine, which was not visible or discoverable upon the slightest trial and observation. The deponents say it was. toó complicated to be cheaply and easily worked: No man of common prudence can be pre* sumed to have purchased for the-sum of fifteen hundred dollars a machine or right without some examination of the quality of the one, and the value of the other.
    The judgment in the former action was by the consent of the original defendants. Is it clearly shown that they did not know, or might not, with ordinary attention to their business, have known, that the facts now sworn to existed before that judgment ? No affidavit states explicitly when any trial Or particular experiment was made to test the propertiespf the said machine, at least, by or in the presence of skillful workmen or - competent judges. The evidence is all confined tó one Or two machines, and is drawn front those whose opinions upon this subject cannot deserve any great consideration.
    The court, it is apprehended, will not disturb the judgment reri* dered under such circumstances, and submit to try the petfe tioners eighteen months Or more after the purchase' of the spinning machine, without plain and positive proof of fraud, or of an actual and essential failure of consideration, which common diligence and prudence could not have foreseen or prevented. — 7 Mass. Rep. 205, Bond vs. Cutler. — 13 Mass. Rep. 302, The Inhabitants of Stockbridge vs. the Inhabitants■ of West Stockbridge.
    
   Hutchison, J.

delivered, the opinion of the court as follows, (first stating the. case, as herein before stated,) The affidavits read in support of this petition, go great lengths, if not to show the machines are entirely useless, at least to show them of much less value than if they had been as reprsented by the agent of Brewster when he made the sale and took the note in question. They also place beyond controversy the fact that the note in question was given as part of the purchase money for the right of making* using and vending said machines for said three counties. And the affidavits of the petitioners, sufficiently satisfy the court that the grounds of defence now desired to be setup to the original action were too little known when the. action was defaulted, to afford any prospect of a defence. The petitioners were, therefore, not in fault in neglecting at that period to. interpose their defence. It was their interest to make the. most they fairly could of their purchase, and to test the utility of the machines so as to render them, or the right to malee, use and vend them, saleable to others.' Such experiments as might weE result from this interest were in progress when the action was defaulted; but- the result of those experiments was not fuUy known till afterwards. Justice seems now to require that the petitioners should have an opportunity to lay their defence before a jury for their decision. A new trial is, therefore, granted on terms, that the petitioners, recover no past cost in the action, nor the cost of- this petition-; and if the said: Brewster elect; to. enter a. non. suit in the action on the first - day 0f the next term of tire County. Court, he is at liberty so to do without paying cost. But, before this decision granting a new trial' is. recorded, the petitioners must enter into a rule.that the judgment in favor of the sheriff on the receipt for the property attached, and.the mortgage given to.secure the same, stand good, as if no new trial were granted, as security for the payment of any sums said Brewster may recover on a final trial in the original action.

Robinson, Van JVess and. Mien, for the petitioners.

Bailey, for the petitionee.

The terms 'were complied with and a new trial was granted. '  