Clark v. Sohier.

and filing supplemental bills, which the counsel will please to present early, so as to have them settled by the time the case is ready for final judgment on the report.

JONATHAN CLARK, executor, vs. WILLIAM D. SOHIER, EXECUTOR.

Where a party in an action to recover a note had never enjoyed one trial in this Court, but was defaulted, supposing the case was agreed to be continued, he is entitled to a trial on petition within three years, under a statute of the State of Maine, and on proof of a probably good defence.

That statute is not repugnant to the provision in the judiciary act of 1789, authorizing a new trial on motion after a verdict.

But it confers an additional right, not inconsistent with the other, and not merely a new remedy for an old right.

This Court is empowered to enforce rights under the statutes of States, as well as under acts of Congress, when they are not hostile to the latter, and are asked to be enforced in relation to proceedings at common law.

Such proceedings mean any litigation at law, as distinguished from equity or admiralty.

A new trial in such case is usually had by a writ of review sued out and served, rather than by bringing forward the old action, and serving a notice on the opposite side to defend.

In either case, all proper amendments in the pleadings will be allowed on the new trial, and the service must be on some administrator of the deceased, who has taken out letters in this State.

Quere, whether if one appears as administrator and defends against the petition for a new trial, he is not estopped to deny that he is an administrator in this State.

THIS was a petition for a new trial. The original action was a proceeding to recover a balance, alleged to be due Tuckerman, a citizen of Massachusetts, from the executor of D. Clark, who had been a citizen of Maine. There had been a mortgage given originally to Tuckerman to secure the debt, which had been foreclosed by Tuckerman, and who averred that the premises in the mortgage so foreclosed were not worth the whole debt, and therefore presented a claim to the

Clark v. Sohier.

commissioners on Clark's estate, for about $2000 more. The commissioners decided against Tuckerman.

The estate of Clark was supposed not to be in fact insolvent, and an action at law was then instituted for Tuckerman's demands, in this Court, under a statute of the State of Maine allowing an action in such case, and after an appearance and one continuance, a judgment was rendered on default for Tuckerman against Clark's executor, for $2092 debt, and $34.71 costs, at the October term, 1842. Tuckerman has since died.

The petitioner avers that said action was defaulted by mistake; that there was a good defence to the same, and therefore prays that this Court will grant a new trial therein.

The petition was filed September 30th, 1844, and was argued on the evidence adduced, October term, 1845, by Appleton, counsel for the petitioner; and Hobbs, for the respondent.

WOODBURY, J. It is hardly necessary to go into a very minute examination of the evidence in this case, though I am satisfied upon it that a new trial, if it can in this way be legally granted, would be proper and judicious.

The testimony on some points is conflicting, yet this much is rendered certain-that the petitioner never really had a trial of the claim against him in this Court; that when he did have one before the commissioners, a decision was made in his favor. Thus that he has a defence, and had grounds to expect success in it, is placed beyond any reasonable doubt.

It is equally certain, that he and his counsel intended to set up the defence; but a negotiation having been entered into for a settlement, they understood the cause would be continued till the settlement was made, or the negotiation abandoned.

The other side admits the pendency of the negotiation, but denies any agreement for a further continuance.

However this fact may have been, it will be seen, that the petitioner acted under a different impression, and has thus lost an opportunity of laying his defence before a Court and jury, unless a new trial can be obtained.

The objection made to a new trial on account of the delay to petition for two years after the default, is no legal bar, as the statute of Maine allows three years, and in an equitable view, is answered by the fact of the continued pendency of the negotiation for a settlement up to the time of filing the petition.

But another difficulty which occurred to me at the hearing, and was named to the petitioner's counsel, has not, I regret to say, been removed entirely; but still it is so far overcome as to induce the Court to grant a new trial.

It was, that the 17th section of the Judiciary Act of Congress, of September, 1789, which empowers us to grant new trials, does it only in cases "where there has been a trial by jury." 1 Stat. at Large, 83.

Here there has been no such trial by a jury. Hence it cannot be granted under that act. But in some States, by special laws, though in technical language it is hardly correct to speak of a new trial in case of a default, where there was no old trial, Courts are permitted to set aside the default for proper reasons, and grant a trial; and this is sometimes, in popular language, called "a new trial." Such is the special law in Maine on a petition filed. (See Revised Statutes.)

But I am aware of no act of Congress to that effect, nor of any formal adoption in practice or otherwise by the United States or their Courts, of the statute of Maine on this subject.

The words of the judiciary act seem to contemplate only motions as at common law for new trial, and before judgment is rendered after a verdict. See post.

In this situation of that act, and the practice under it in the Courts of the United States, so far as it has come to my

Clark v. Sohier.

knowledge, it requires some careful discrimination to see how a new trial can be legally granted in the present case, on a petition, and after the lapse of so long a time as two years between the default and the filing of the petition, and where in the mean time judgment has been rendered and carried into effect.

The form of asking it by petition probably did not exist when the act of May 8th, 1792, passed, (1 Stat. at Large, 275,) and of course not being then or previously adopted, has not by any action of Congress since, or by any judicial decisions on former acts, been put in force in any particular case, cited at the bar, or found by the Court.

The question then remains to be settled, whether it can be allowed as a right under the State laws, and not inconsistent with any legislative action had by Congress.

The law of Massachusetts passed since, allowing partition of lands on petition between tenants in common in that State, has been considered by this Court as binding on it in ex parte Biddle, 2 Mason, 472.

I have no doubt that decision was correct under the 34th section of the judiciary act of 1789, providing "that the laws of the several States, except where the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the Courts of the United States in cases where they apply." A new trial is a proceeding at common law, quite as much as a petition for partition, and a hearing to obtain it may be regarded as a hearing at common law on a common law question.

The subject-matter, also, to which it relates here, was a suit at law which may have been what was meant by the expression, "Trials at common law," as distinguished from trials in equity.

"Suits at common law," in the 7th amendment of the constitution, has been held to mean merely "cases in law."

Clark v. Sohier.

1 Bald. 405, 554; 12 Pet. 634. That is, cases not in equity or admiralty. Parsons v. Bedford, 3 Pet. 433, 447. And "suit" means a right litigated between parties in a Court of justice. Kendall v. United States, 12 Ibid. 524, 645; 2 Ibid. 449; Holmes v. Jennison, 14 Ibid. 540, 566. As in a habeas corpus or mandamus as well as in a common action.

But if that expression, "at common law," meant only a "litigation in Court," instead of a direction purely ministerial or as to process only, which seems to have been the idea of some, this was of that character likewise. Conkl. Prac. 95. The only difficulty, then, remaining is, whether the statutes of the United States have not legislated on this subject fully, and by that have excluded any subsequent legislation of the States as applicable to the same subject.

I have no doubt that the clause in the 17th section of the judiciary act, providing "that all the said Courts of the United States shall have power to grant new trials in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the Courts of law," would justify the grant of a new trial in such case, though it should be prohibited by the laws of the State where the application is made. Picquet v. Swan, 5 Mason, 35, 39.

But whether the States may not pass laws granting such trials in different or additional cases and in new modes, and which the Courts of the United States ought to enforce in cases coming before them, is a distinct question.

After careful consideration, I am inclined to the conclusion that the act of Congress is a provision for only one class of cases, and to that extent cannot be modified or limited by the States.

But that in other classes of cases, if the State laws give merely other and additional remedies, they must be regarded as not conflicting nor inconsistent, but in harmony with the other remedy by act of Congress, leaving that as before, and