The opinion of the court was delivered by

The suit in favor of Safford v. Hall, was entered in court at the time set in the writ. The justice was at the place, with the process in his possession, and under his control. The plaintiff appeared by his counsel, and nothing prevented the trial of the case, except the absence of Hall. There was, therefore, no discontinuance of the suit for that cause. If there is any ground of complaint, it is for matters arising subsequent to this. The justice could make no record of a default, under two hours from the time the writ was returnable. The entry upon the writ, of a default at the hour of two, was not a matter in any way affecting the rights of the parties. It was not so intended or regarded. It was designed merely as a minute of the justice, to have effect, or not, as should be subsequently determined by the- appearance- of the defendant Hall, in the case. It could have no legal effect, until after the expiration of the first two hours; and for two hours after that, the justice, in his discretion could vacate any such record, and grant a rehearing, on application, of either party. Comp. Stat. 235, § 44,45.

The case being properly in court, it was competent for'the justice to order the case to stand open for trial, for a; reasonable time, until his return from the short distance which he was under the necessity of going, to attend another suit pending before- him. It was not necessary for him to remain at that particular place; during the whole time allowed for the defendant to appear. It was so decided in the case of Peach v. Mills, 13 Vt. 501 — but it was his duty to see that the defendant in that suit, had hig day in court, and an opportunity to make his defense, for if he has been deprived of that right by any artifice or fraud, the judgment will be vacated by this writ. For this reason, the case was ordered to stand open, with *92the understanding, that if the defendant appeared by three o’clock, or in a reasonable time after, the right of appearing and defending the suit should be secured and granted to him; and of this, the complainant was informed by the counsel for Safford, a short time before three o’clock, and about the time he appeared to answer to the suit, to which no objections were made at the time. The justice, we learn, returned about the hour of four, and within the time in which he had the power, by statute, to vacate any record of default or nonsuit, properly entered, and to grant a hearing to the parties; and, immediately thereafter, the justice notified the counsel for the complainant, that the case was open for trial, if they desired to make a defense, and requested him to appear and answer for that purpose. This was a full compliance with his duty, after the case was ordered to stand open, and effectually disposes of all ground of complaint that the judgment was obtained by any artifice or fraud. After this notice was given, and request made, they neglected to appear and make their defense, and suffered the judgment to pass by default. It is difficult to conceive of a case, where the complainant has less reason to complain of the want of an opportunity to be heard in his defense, or of being deprived of his day in court, by artifice or fraud; and surely, where an opportunity to be heard was granted to him, and his defense has been lost by his own wilfulness, or neglect, no relief from that judgment can be obtained by this process.

The suggestion, that the notice and request to appear and answer to the suit, after the return of the justice, was given to the attorney of Hall, and that his relation as such had ceased, can have no effect in this case ; for if his relation as attorney to Hall had ceased in good faith, that relation existed when he first appeared to make his defense, and when he was informed that the justice had ordered the case to stand open for trial until his return, and to which, no objections were made. Of this, the complainant is chargeable with knowledge. It was the duty of the defendant Hall, therefore, within a reasonable time thereafter, to appear and make his defense — and obviously, the absence of one hour by the justice, and his return within the time, in which he can exercise his discretion in setting aside any default or nonsuit, cannot be considered unreasonable.

The judgment of the County Court is affirmed.