Napier's Executors v. Person ( 1835 )

Green, J.

delivered the opinion of the court.

We think this petition is suificient to have entitled the party to another trial, upon the merits of the cause. Taking it to be true, the county court judgment was manifestly unjust, for the amount complained of; and where a strong case of 'merits is made out, the courts ought to be inclined to permit a re-investigation, where it can be done without breaking down the settled rules of law. The excuse, here, for not appealing, we think, is a reasonable one. Napier was at a distance from the place where the trial was had, and could not be resorted to for information and direction. He was sick, so that he shortly afterwards died, and could not attend court. He could not, therefore, appeal. His attorney or agent, (even if his defence had been known,) was not bound to prosecute an appeal for him. We cannot well imagine a better excuse for not appealing, or a stronger case of merits.

Reverse the judgment, and let the cause be remanded to be tried on its merits.

Judgment reversed.