This was an appeal from the decision of Edgecomb Superior Court, awarding a new trial to the plaintiff, upon an affidavit which stated in substance, that he had instituted this action against the defendant, for neglect of duty as a constable, whereby the plaintiff had lost the amount of a judgment recovered by him, before a magistrate, against Lawrence. That upon two trials in the county court, he offered the judgment of the magistrate as evidence of the amount of damage, which was received without exception—the defence being rested on an alleged misconception of the action—whence he believed it would not be necessary for him to provide evidence to prove the amount of the judgment in the Superior Court; that he was unprepared to do this, when the exception was taken, though he can do it by the next term; and that the same counsel defended in both Courts.
Taylor, C. J.
It was an essential part of the plaintiff’s evidence to prove his account against Lawrence, yet no witness attended for that purpose, nor does any appear to have been summoned. After so many trials, to grant a new one that the plaintiff may prepare his case, and do that, which, ought to have been done from the time the pleas were entered, does not seem to be proper, from any reasons laid before us.
Motion for a new trial overruled.