[1.] We think the Court should have continued the case, to allow defendant to prepare his bill, so that he might be able to set up his equitable defence. The proceedings had been instituted within less than a month ; from a ‘verdict in that case, there was no appeal ; defendant had used due diligence in preparing his bill, except that it lacked an allegation which the Judge deemed important, and which allegation the coimsel stated he intended to put in ; and we must believe his statement. With this addition to the bill, the Court had in effect, decided that the party was entitled to an injunction to restrain the common law proceeding ; and under this state of facts, ought not the case to have been postponed'until the defendant could have prepared his pleadings ? We think so most clearly.
[2.] We think the refusal of the Court to permit Peterson to be relieved from liability, so as to m'ake him a competent witness, was an error. It is a common practice, sanctioned by repeated decisions of this Court, to allow a party to release a surety by the substitution of other good security, in order to make the first surety a competent witness ; and we see no good reason why the same practice should not prevail in cases of this character. The statute simply requires that the tenant tender a bond with good security for the payment of the sum which may be recovered against him on the trial : Acts 1865-6, p. 35. It is immaterial who the surety may be. He might be Peterson, or any other “ good security.” For these reasons, we reverse «the judgment, and award anew trial.
Judgment reversed.