
    John Probasco against Joachim Hartough.
    CERTIORARI.
    If a defendant, in a causo pending before a justice of the peace, and in which if he has a defence, is led into a mistake with regard to the time to which the cause is adjourned, and the trial is had in his absence, and without his knowledge; this court will reverse the judgment.
    By the affidavits taken in this cause, under a rule of this court, it appeared, that on the 11th day of October, to which time the cause had been adjourned, on the application of Probasco, the defendant, below, the said “ defendant, called at the office of the justice, for the purpose of applying for a further adjournment thereof. That the justice, was not in his office, but that William. Letson, a partner in trade of said justice, was there; and upon Probasco’s enquiring for said justice, and informing the said Letson of his business, was told that Hartough, had sent a letter that morning, and solicited a farther adjournment for a fortnight; and as the parties both requested it, such further adjournment would be granted. And that said Letson, further told Probasco, that it was unnecessary for him to remain until the said justice came in, as he would notify the justice of the application.’-' That in consequence of this information, Probasco went home, and at the expiration of said fortnight, came prepared with his witnesses to try the cause, when he was informed, for the first time, that judgment had been rendered against him. That he was totally uninformed of the day of the trial, of said cause. And that he had a just and legal defence to make on the merits of the. action.
    It further appeared, by the affidavit of Letson, that Joachim Hartough, the plaintiff below, sent a letter to the justice, in which he requested an adjournment of his suit against Probasco, for two weeks. But the cause was actually
    
      adjournéd only for one week, and that Hartough appeared on the day of the trial, and insisted upon having the cause tried, and that -it was tried in the absence of Probasco the defendant below.
    
      Vroom, for the plaintiff, in certiorari, moved to reverse the judgment of the justice, because Probasco, was surprised and deceived as to the time \ of the trial, and had not an opportunity of being heard; and cited 2 Fen. Fep. 630; 1 South Rep. 288.
   By the Court.

The act of the legislature, relative to the trial of small causes, says, “ that to prevent fraud and surprise, the justice may grant adjournment,” and in this case we are inclined to think, he ought to have granted the adjournment for two weeks. This is not so strong a case as that of Trueax v. Roberts. 1 South. 288; and we think the judgment o.ught to be reversed.

Judgment reversed.  