There does not appear to be error in overruling the motion to dismiss the writ of certiorari. The petition, it is believed, sets forth sufficient grounds.
The defendant, being about to be absent on the first trial day after the service of process, requested of the Magistrate a continuance until the succeeding Term. He was assured by the Justice that the cause would be so continued, and the Justice also gave an assurance to the attorney of defendant to the same effect. This is an irregular mode of obtaining a continuance, but it has, perhaps, received some sanction, in practice, before the Justices’ Courts. At all events, the assurance of the Magistrate was well calculated to lull the vigilance of the defendant; and a judgment against him, under such circumstances, might well be considered as being taken by surprize. The petitioner further swears that he was not informed of the judgment, until he appeared at the Term to which he had supposed the cause continued, and enquired whether the cause would be tried, and he therefore was deprived of the right of moving to set aside the judgment or for a new trial.
*106He further sets forth in the petition, that the judgment was rendered without evidence. If so, and the fact must be taken as stated, on exception or motion to dismiss, there was error in the proceeding, the Act requiring the Justice to have evidence before giving judgment on an unliquidated demand.
The petition also states that there was no justice in the demand of the plaintiff; and, upon the whole we are of opinion that there was sufficient ground for the writ. And it is ordered that the judgment be affirmed.
Judgment affirmed.