
    * Abraham Sheridan agt. Othniel Kelly.
    Where an inquest was taken at the circuit against defendant on promissory notes* and one of defendant’s attorneys was sick and unable to attend the circuit, and his partner was out of town attending a justice’s court; it was held that the excuse was not sufficient to open or set aside the inquest, although the defendant swore to merits.
    
      December Term, 1845.
    Motion by defendant to set aside inquest and verdict.
    This was an action of assumpsit on two promissory notes. An inquest was taken in the cause on the second day of the circuiWthe defendant not appearing; one of defendant’s attorneys stated he was unable by sickness to attend the circuit and serve an affidavit of merits which he had prepared, and to defend the cause, and his partner was out of town at the time; for those reasons an affidavit of merits was not served on the first day of the circuit, and the cause was not defended ; the defendant swore to merits. It appeared from plaintiff’s papers, that the defendant had promised to pay the notes about the time the suit was commenced; that one of plaintiff’s attorneys was in attendance at the circuit on the first day, and on the second day was out of town attending a justice’s court; this cause was .the only one undisposed of on the calendar, on the second day of the circuit, and was called in its regular order and án inquest taken.
    C. K. Watkins, defendant’s counsel.
    
    Knox & Watkins, defendants attorney.
    
    S. S. Viele, plaintiff’s counsel and attorney.
    
   Jewett, Justice.

Held, that the excuse was not sufficient to open the inquest, and denied the motion with costs.  