¡fljA.5TGN presented the affidavit of defendant, stating, fust 'twJ soon after he was served with the writ, he wrote to LIr. Jones, an attorney of this court, to plead for him ; and nse-ed under a belief that he had done so, until the present t"rrn ; when looking upon the docket, be found a default entered : that he then went out of the court to employ Mr. Jocelyn; a-.dbe-fore he returned, a jury had been sworn, and the damages assessed. He further set forth in his affidavit, that he did not owe the plamiijf any thing.
Mr. Gaston, moved upon this affidavit, that the verdict might be set aside upon payment of costs, and the party Lt in to plead, so as to bring the merits in question.
Jones, e contra,
opposed the motion witl^mueh earnestness.
Lode, Judge.
It is agreeable to the practice to sot aside the verdict, where the merits have not been tried, and that owing to mistake, provided it appears that the applicant probably has She merits on his side. x
Let the verdict be set aside on payment ct costs, and, ill" party be admitted to ¿dead.