
    Napier’s Executors vs. Person.
    A petition, by an executor, for a certiorari, stated as a reason why no appeal was taken, that his testator was sick, and confined to his bed at his residence, in Dickson county; that he shortly afterwards died; and that his agents did not know what proof could be made: Held, that this was a suificient and reasonable excuse for not appealing, and entitled the executor to a certiorari, to have the cause re-tried upon its merits.
    At the February term, 1834, of the county court of Davidson county, Person recovered of R. C. Napier, one hundred and seventeen dollars and seventy cents. In April thereafter, the executors of Napier presented their petition to the circuit judge, in which they state that the said recovery was had for the hire of several slaves for the year 1831; that when the contract of hiring was made, it was agreed there should be a deductiorr for the time the slaves might lose by sickness, and by running away; and that for the time so lost there should have been a deduction of fifty-two dollars and seventy-five cents; and that the plaintiff has obtained judgment for more than he was entitled to, by that amount.
    The petition states, as a reason why an appeal was not taken, that, at the time the judgment was rendered, Napier was sick, and confined to his bed, at his residence in Dickson county; that he shortly afterwards died; and that his agents did not know what proof could be made.
    Upon this proof, a supersedeas and certiorari were obtained, and the cause was brought into the circuit court; and, upon the plaintiff’s motion, the court dismissed the certiorari, and gave judgment against the executors.
    Thompson, for plaintiff in error.
    
      W. T. Brown, for defendant in error.
   Green, J.

delivered the opinion of the court.

We think this petition is suificient to have entitled the party to another trial, upon the merits of the cause. Taking it to be true, the county court judgment was manifestly unjust, for the amount complained of; and where a strong case of 'merits is made out, the courts ought to be inclined to permit a re-investigation, where it can be done without breaking down the settled rules of law. The excuse, here, for not appealing, we think, is a reasonable one. Napier was at a distance from the place where the trial was had, and could not be resorted to for information and direction. He was sick, so that he shortly afterwards died, and could not attend court. He could not, therefore, appeal. His attorney or agent, (even if his defence had been known,) was not bound to prosecute an appeal for him. We cannot well imagine a better excuse for not appealing, or a stronger case of merits.

Reverse the judgment, and let the cause be remanded to be tried on its merits.

Judgment reversed.  