Opinion of the Court by

If appellee had not agreed that the case should stand over until the second week of the circuit term, on the appeal of Brown for him to’ do so in order that he, Brown, might go to Indiana to attend some important business, he could easily have counterváiled Browns’ affidavit of this fact by his own.

Brown’s affidavit,, on motion for a new trial, to this fact, must be taken as true in the absence of any countervailing affidavit of Chaudit, or other person, and on this fact alone entitled him to a new trial, inasmuch as the trial was had the first week of the term, and in Browns’ absence.

The unexpected adjournment of the term at the end of the first week was no justification of the violation of this agreement, and though this motion was made on Saturday of the first week, the *332last day the court would sit at that term, it should have prevailed.

Judgment reversed for a new trial.