This was a motion for a new trial, on the ground that the case was tried and a verdict rendered against the defendants in the absence of 3). P. Hill, who was the sole counsel for defendants, who had leave of absence from the Court. The Court refused the motion for a new trial, unless the defendants could satisfy the presiding Judge that they had evidence to make out their defense, and thus prevent a similar verdict against them on a second trial; whereupon, the defendants excepted. The defendants had filed their plea to the plaintiffs7 action, setting up a good legal defense thereto, and might have been able, if their absent counsel had been present, to have satisfied th,e jury, if not the presiding Judge, that the plaintiffs were not entitled to recover, under the evidence contained in the record, on the first trial, and also on the second trial. The bill of exceptions states that the defendants’ counsel had leave of absence from the Court, but that the presiding Judge had forgotten it.
In our judgment, the new trial should have been granted: Hamilton vs. Conyers, 25 Georgia Reports, 158; Summerlin vs. Dent, 36 Georgia Reports, 54. This case differs from that of Bell vs. The Marietta Paper Mill Company, decided at the last term of the Court. In that case, there was no plea filed *538which showed that the defendants had any legal defense to the action, and this Court held that such a plea should be filed and sworn to; otherwise, it did not appear that the defendants had any defense. In this case, the defendants’ plea was filed and sworn to, and evidence introduced on the first trial in support of it.
Let the judgment of the Court below be reversed.