It appears from the evidence that the petitioner was absent from the country from the time of the service of the writ until after the time appointed for the trial, and had no actual notice of the suit. Under these circumstances it might, perhaps, be doubted whether there was any legal service of the writ, but we are not called upon, in the present aspect of the case, to indicate any opinion upon that question. The evidence further shews that the judgment was rendered against the petitioner for about two hundred dollars more than the petitionee, in May, 1853, proposed to receive in full of all his claims of every kind.
Under the construction given to that section of the statute under which the present petition is filed, in Oohurn v. Rogers, decided in Merrimack County during the present term, this court is authorized to grant a review in any case where the party seeking it has not already enjoyed the right of review, when it shall appear that justice has not been done through any accident, mistake or misfortune, and that a further hearing would be just and equitable. It is very clearly the misfortune of the petitioner that a judgment has been rendered against him, in his absence, and without any actual notice, and satisfied by a levy upon the whole of his real estate, for nearly two hundred dollars more than the judgment creditor is proved to have been willing to take in full of all claims against him; and there'can be no doubt, we think, upon all the evidence, that .a further hearing would be just and equitable.
A new trial must, therefore, he granted, with costs of the proceedings here.