
    Atwood against Austin,
    courtlo'prove file dt1meCthat desesperase! allowed toen! ter into it, al though he was not present, when the trial commenced, Where a defendant in a Justice’aCourt,
    IN ERROR, on certiorari to a Justice’s Court. The defendant in error brought an action in the Court below against the plaintiff in error, in which issue was joined. At the time appointed for the trial, the Justice called the parties, but the plaintiff only appeared. While the examination of the plaintiff’s witness was going on, the defendant below came in, and the examination having been J ° completed, he offered a witness to prove his defence; but * . . _ the Justice told him, that his detault had been entered, and that he could not hear his defence unless the plaintiff consented. The plaintiff refused to consent, and judgment was rendered in his favour.
   Per Curiam.

The proceeding was severe and. unjust. The trial was not, in fact, delayed by the defendant; he came in time to prove the only defence which he had set. up, yiz. : payment; and he offered a witness to prove it, immediately after the plaintiff rested his cause.

Judgment reversed, . 
      
      
         Vide Sweet and another v. Coon, 15 Johns. Sep. 86.
     