
    Andrew Pawley vs. Thomas M’Gimpsey, use &c.
    When a plaintiff in a suit before a justice of the peace, relied for a recovery against the defendant upon an account, and upon the trial of the cause in the circuit court upon appeal, substituted a receipt of the defendant for the collection of moneys, as constable, without giving the defendant notice of the intended charge, and recovered a judgment upon said receipt: Held, that this was such a surprise upon the defendant as entitled him to a new trial.
    A rule of the court, which requires that a party applying for a new trial, shall make and argue such motion on the Saturday after the trial of the case is unconstitutional; and the refusal of the court to entertain the motion and grant a new trial because not made on or before the first Saturday after the cause, is erroneous, and for that the judgment will be reversed.
    This was an action originally commenced before a justice of the peace, by warrant, for a demand under one hundred dollars: a judgment was rendered for the plaintiff. Upon this judgment the defendant obtained a cer-tiorari and supersedeas, and took the case to the circuit court. Among the papers returned by the justice was an account upon which he had rendered the judgment, for the plaintiff. Upon the trial in the circuit court, the plaintiff did not rely upon the account, but introduced and relied upon the receipt of the defendant given for notes which he had received to collect as a constable. The defendant not introducing any proof, the jury found a verdict for the plaintiff. The defendant filed an aifi-davit, setting forth, that on the trial before the justice, the plaintiff had relied upon the account as his cause of action, not intimating that hepntended to proceed"upon any other cause of action; that he had came prepared with evidence to show that he did not owe said plaintiff any thing upon the account; that }ie ,had gone to trial under the belief and expectation that the account would be the matter litigated between them; that after the. jury were sworn the plaintiff had abandoned his account and • relied upon a receipt given by him, as constable, for the collection of notes, without having given him notice that he designed to attempt charging him upon said receipt; that said charge upon said receipt was unjust, that he did not owe one cent upon it, and that the abandonment of the account and substitution of the receipt' had taken him by surprise; that upon another trial, he could show that he had not collected any moneys upon said notes,-and that nothing was due upon said receipt; and asked a motion to be entered for a new trial, and that the same might be granted. This motion for a new trial was not made until the first Saturday after the trial of the cause had passed. There was _a rule of the court, entered upon the records of the court, which required that all-motions for a new trial should be made and argued on the first Saturday after the trial of the cause. The court refused to entertain said motion and grant a new trial in the cause, because the motion was not made and entered on the first Saturday after the trial of the cause. From this opinion of the court the defendant prosecuted a writ of error to this court.
    
      Pillow-, for plaintiff in error.
    for defendant in error.
   Peck, J. ’

delivered tbe-opinion of tbe court. 1

The production of tbe receipt as the evidence to sustain the action under tbe circumstances, was a surprise upon tbe defendant; which, from the facts shown on the record, was ground for a new trial.

It does not appear by the record, that the receipt was ever offered as evidence until at the trial complained of in the circuit court; an account had been filed, and this account must be taken, at least prima facie, as the intended ground of action; and comparing that account with the receipt, there is no such necessary- reference, the one to the other, as can be taken as notice of any intention to introduce the receipt. Admitting it to be true as contended, that the plaintiff below could offer his receipt to sustain his action, still, when offered, the defendant had a right to rebut the proof, by showing the receipt cancel-led or settled, or other matter in evidence of it. We can only look into the affidavits made for a new trial, and comparing them with the other facts in the record, act up on the motion for a new -trial, as if the same had been entered in the court below and disposed of. Upon this part of the case, we are called upon to express an opinion upon the practice of the judge on one of his own rules, which directs that all motions shall be made on the Saturday after the trial. The motion for a new trial was denied, on the ground that it was not brought forward at the appointed time.

' We dislike to interfere with mere matters of practice in the inferior courts. Rules, when adopted, should be for the furtherance of justice; but a too rigid adherence to the rule is made, in this instance, to defeat justice. It is the business of the courts to be open, where right and justice shall be administered. This is a constitutional requisition, and if the rule came in conflict with this salutary provision, it should have been made to yield.

Even fictions will be resorted to, to attain justice; and that fiction which considers the whole term as but one day, had for one of its objects the prevention of a plea of time as to the acts done, where such plea might produce injustice. In short, rules which are the creatures of the court, must yield to positive' law.

The party being sustained in grounds for his motion, it should not have been denied on the plea that it came too late; it is settling the right upon a- point of practice, overlooking the law. This judgment must be reversed, and the cause remanded for another trial.

Judgment reversed.  