delivered, the opinion of the court as follows, (first stating the. case, as herein before stated,) The affidavits read in support of this petition, go great lengths, if not to show the machines are entirely useless, at least to show them of much less value than if they had been as reprsented by the agent of Brewster when he made the sale and took the note in question. They also place beyond controversy the fact that the note in question was given as part of the purchase money for the right of making* using and vending said machines for said three counties. And the affidavits of the petitioners, sufficiently satisfy the court that the grounds of defence now desired to be setup to the original action were too little known when the. action was defaulted, to afford any prospect of a defence. The petitioners were, therefore, not in fault in neglecting at that period to. interpose their defence. It was their interest to make the. most they fairly could of their purchase, and to test the utility of the machines so as to render them, or the right to malee, use and vend them, saleable to others.' Such experiments as might weE result from this interest were in progress when the action was defaulted; but- the result of those experiments was not fuUy known till afterwards. Justice seems now to require that the petitioners should have an opportunity to lay their defence before a jury for their decision. A new trial is, therefore, granted on terms, that the petitioners, recover no past cost in the action, nor the cost of- this petition-; and if the said: Brewster elect; to. enter a. non. suit in the action on the first - day 0f the next term of tire County. Court, he is at liberty so to do without paying cost. But, before this decision granting a new trial' is. recorded, the petitioners must enter into a rule.that the judgment in favor of the sheriff on the receipt for the property attached, and.the mortgage given to.secure the same, stand good, as if no new trial were granted, as security for the payment of any sums said Brewster may recover on a final trial in the original action.

The terms 'were complied with and a new trial was granted. '