delivered the opinion of the court 1 he defendant rpoved for a new trial, on the ground, that during the pendency of . the action he was confined on a charge of murder, and was only released the day before trial. The court refused the application, and he appealed.

We are unable to say the judge erred. Applications of this kind are always addressed to the sound legal discretion of the court below. The grounds assumed by the inferior tribu*133nal in refusing this ; that the verdict was well supported by the evidence, and that justice was done, is amply sustained by the nature of the claim, the proof adduced, and the suspicion which fairly attaches to a plea in recon-vention for matters arising, anterior to the date of the obligation sued on. T. he statement in the defendant’s affidavit, that the cause was tmd ex parte, is contradicted by the record, which makes express mention, that on the trial, counsel appeared for the defendant, and was heard in his behalf.

As it is however possible, the defendant, under other circumstances, might have had the means of supporting his plea in reconvention, we shall reserve Mm his right to do so.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be anulled, avoided and reversed ; and it is further ordered and decreed, that the plaintiff do recover of the defendant, the sum of six hundred and forty four dollars, with interest from judicial demand, and costs in the court below. Those of appeal to be borne by the plaintiff. Reserving, however, to the

defendant, all his rights on the matters and ty(|gs p|easjet| by |j¡m in reconvenlion.