Statement of the case and ©pinion of the court, delivered by
Tompkins, Judge.This is an action of assumpsit, brought by Leak against Elliott. The general issue and statute of limitations were pleaded and issues made up on them. The defendant did not appear on the day set for the trial of the cause, and the court gave judgment against him by default, and assessed his damages to two hundred and twelve dollars, &c.. On the fifth day of the term, the defendant came andfinade oath by affidavit, that he had been misinformed by his counsel as to the time of holding court, the old law being repealed, and the new one not published — and that he could have proved that he was not indebted to the plaintiff; and on this affidavit, he moved to set aside the judgment by default, and for a new trial of the cause. The circuit court overruled the motion.
It is assigned for error,
1st. That the court ’ erred in giving a judgment by default.
2nd. That the court committed error in overruling the defendant’s motion to set aside the judgment by default, and in refusing to grant a new trial. One other assign-menj was made, but it is not material to a correct decis- . c ,, . ' 01 this C3.SG-
1st. As to the error charged to be committed by the court? jn giving judgment by default. The circuit court should have found the issues made up between the parties, and have given judgment on the finding of such issues. In not doing this, that court has committed error.
2nd. As to the overruling of the defendant’s motion to aside the judgment, and grant a new trial, it may be observed, his affidavit is insufficient. An affidavit for such a purpose, ought to state positively, that the affiant has merits. He states that he would have been able to prove that he was not indebted to the plaintiff, if he had known of the time of holding court. He had pleaded the statute of limitations, and it might have been, that he would have been able to make his defence under that statute only, a plea which the courts are not inclined to fa-vour. In this decision, we do not find that the circuit court committed any error; but for the error committed in giving judgment by default, the judgment ©f that court is reversed, and the cause is remanded.