The opinion of the court was delivered by Justice Ford.

William E. Boulton brought an action of debt, against Lucien Murat in the court for trial of small causes, and on the return day of the summons each party filed his account against the other. The cause was then adjourned from, the 19th of February to the 5th of March 1831. When the day for trial arrived, the defendant did not appear and judgment passed against him for thirty-eight dollars and three cents of debt, and one dollar and forty-one cents of costs, in his absence-On the judgment being brought into this court, the original defendant moved to reverse it, because he was deluded before the day of trial, by the plaintiff’s pro'mising to drop the suit before; the justice, and leave the matter to Samuel Black, esq. or make; an amicable settlement between themselves; confiding in which; agreement he did not attend before the justice. Two depositions for substantiating these matters are laid before the court,, one made by John Wilson and the other by Amos Keeler. It; appears that John Wilson, at the request of the defendant, called on -the plaintiff and told him, that Mr. Murat offered to pay the; *305costs and leave the dispute to Esquire Black, and the plaintiff answered he had no objections, provided Mr. Murat would pay the costs. It also appears that Amos Keeler, at the request of the defendant, called on the plaintiff, who gave for answer that he had no objection to leave the matter to Esquire Black, or to settle it amicably, provided Mr. Murat would do it and pay the costs before the day of trial; if not he should be no better off than before, and unless it was done he should get judgment if he could.

The court cannot alter the terms of an agreement and take it as being absolute when it was only on condition ; we must take it as it was made. We cannot reject a proviso that is sworn to by both of the witnesses. The condition was not, if the defendant would promise to pay the costs, for that might be the foundation of only another suit, and the plaintiff would be no better off by it. The inference from Wilson’s evidence is therefore a necessary one, that on the performance of that act he would stop the suit. But Keeler’s evidence is so express as leaves nothing to inference; it is that Mr. Murat should pay the costs; and do it before the trial day, and if he failed to do it that the plaintiff would get judgment against him if he could. Mr. Murat had no right to expect the fulfilment of the promise without performing the condition on his part. Here was nothing to mislead or delude a person who understood the language, and if he did not understand it (of which there is no proof) it was his misfortune', but not the fault of his adversary, and where he is in no fault we cannot deprive him of a regular judgment. Where the conduct of a party has been entirely fair and the proceedings of the-court below all regular, we never reverse the judgment in order to let the defendant have a trial on the merits. If we were to' make a precedent of that kind, we should have to reverse every judgment by default before a justice, upon the defendant below making in this court an affidavit of merits. The allegation of the plaintiff in certiorari is not supported by either of the depositions, and therefore the judgment below must be affirmed.