Opinion
(Fall Riding, 1805.)
A default will be set aside where the defendant has probably merits on his side, and his not making defense arose from mistake.
GASTON presented the affidavit of defendant, stating that soon after he was served with the writ, he wrote to Mr. Jones, an attorney of this Court, to plead for him, and rested under a belief that he had done so, until the present term, when, looking upon the docket, he found a default entered: that he then went out of the court to employ Mr. Jocelyn, and before he returned, a jury had been sworn and the damages assessed. He further set forth in his affidavit that he did not owe the plaintiff anything.
Mr. Gaston moved, upon this affidavit, that the verdict might be set aside upon payment of costs, and the party let in to plead, so as to bring the merits in question.
Jones e contra, opposed the motion with much earnestness.
It is agreeable to the practice to set aside the verdict where the merits have not been tried, and that owing to mistake, provide it appears that the applicant probably has the merits on his side.
Let the verdict be set aside on payment of costs, and the party be admitted to plead.
NOTE. — See the next case of House v. Bryant; Cogdell v. Barfield, 9 N.C. 332; Reynolds v. Boyd, 23 N.C. 106.
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