This case was adjourned by agreement of counsel to December 29, 1909, but by direction of the trial justice was set down for .the 28th of December. It appears from the affidavit of defendant’s counsel that he was not notified until the afternoon of December 27th, that the case had been set down for trial on the 28th, and that it was impossible for him to then properly prepare for trial on the following *980day. The affidavit of merits discloses a good defense, if established, and the defendant has evidently acted in good faith throughout. The motion to open the default should have been granted.
The order appealed from should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.