— 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 no where 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 qur legal authority,in declaringtheproceedings below,

Null and void.