The opinion of the court was delivered by

The relator bases his claim for relief on that article of *1375the Code of Practice which ■ entitles the defendant cited before a Justice of the Peace to a reasonable time for procuring his evidence.

It seems, that cited to appear, he applied for a commission to take testimony. Without issuing the commission, the justice decided the suit against the defendant. We think, under the circumstances, the trial should have been postponed until the desired testimony was obtained, or, at least, the opportunity for obtaining it was afforded. C. P., Arts. 1082, 1084.

We are better satisfied with this view, as the justice states in his return a new trial would have been granted if it had been asked.

It is therefore ordered that the judgment referred to in the application be set aside, and a reasonable time be allowed the relator to obtain his testimony, and the suit then proceed to judgment in due course.