1. When, upon the call for trial of a case in which an issuable defense had been filed, the sole counsel for the defendant stated in his place (the statement being considered by the judge as though made under Oath) “ that he was too unwell to attend to any business, and could not possibly go to trial, on that account,” and there was no' counter-showing, it was error to refuse a continuance and to proceed with the trial in the absence of such counsel.

2. The case having been taken to the superior court by certiorari, and the above facts having been verified by the answer, it was not error to sustain the certiorari and grant a new trial.

Judgment affirmed.