
    DEN ex dem. RIKER against BALL.
    In ejectment, judgment opened and habere facias quashed, on reasonable grounds, no trial being lost.
    The declaration in this case, was served on the tenant in possession, ten or twelve days before the last term; and as no appearance was had, judgment was obtained at the close of the term, and a writ of habere faoias possessionem issued, and the tenant turned out of possession.
    
      At this term, Mr. Williamson, at the instance and in behalf of G. 1). Brinkerhoff, who was alone concerned in interest, applied to the court to open the judgment, and to quash the writ of possession, on affidavits of merits; and that the tenant had been surprised, expecting Mr. Brinkerhoff, from whom he had a warranty for the land, to defend the action, and who had been notified some few days before court; but that Mr. Brinker!) off’s family was in so distressed a situation by sickness, and death of a daughter at the time, that he could not attend to it. He stated that [709] no trial had been lost, and that the merits could be tried at the ensuing Essex Circuit. There were counter affidavits denying the merits.
    
      Kearney, for plaintiff.
   By the Court.

The application appears reasonable. The declaration was served but a short time [*] before court; the affliction in the family of Mr. Brinkerhoff furnishes a reasonable excuse for not attending immediately to the defense.

Take your rule. 
      
       See Tidd, 508. Ooxe 201. 1 Salst. 451. 2 lb. 461-
      
     