
    William Cramond, John Leamy and Hugh Holmes executors of David Cay, who survived Andrew Clow against Thomas Gibson and John Gibson.
    The certificate of counsel on an appeal from the Circuit Court resting on facts not apparent on the record to the Supreme Court, must be made during the sitting of the Circuit Court.
    Appeal from the Circuit Court of Allegheny county.
    Mr. Rawle for the defendants,
    offered to file a certificate, signed by himself this day, that whereas the justices of the Cir•cuit Court of Allegheny county had in October last, ordered a judgment to be entered in this cause, for want of an affidavit of defence under the 20th rule of the Circuit Court, without the consent of the defendants or their attorney, and though the said attorney, in the absence of his clients, was ready and willing to proceed to trial of the merits by jury, he believed that “the same “ are sufficient in law, to obtain a decision in favour of his clients, “ and are not made for the purpose of delay; ” according to the 4th section of the late law, passed 20th March 1799. 4 St. Laws, 364.
    . Yeates and Smith Justices, who held the last Circuit Court in Allegheny county, declared, that though they retained no recollection *of the particular circumstances of this case, p¡, they thought it most highly improbable, that they could L' I23 have denied the defendants a hearing, or that the facts stated could have happened.
    Shippen, C. J. How is this matter to be ascertained ? Ought not the certificate to have been given during the Circuit Court, when if any previous misunderstanding had taken place, the same could readily be rectified ? Are plaintiffs on obtaining judgments in the Circuit Courts, to wait until the ensuing term in the Supreme Court, until they can be informed, whether the defendants intend to appeal ?
    Mr. Rawle, pro def.
    
    The law erecting the Circuit Courts, does not direct, when the certificate shall be subscribed by counsel ; nor any other rule of the court that we know of. If the party is dissatisfied with the decision of the Circuit Court, he may appeal, by the expressions of the law, to the Supreme Court, and obtain from the clerk of the Circuit Court, a record of all the proceedings, and file the same with the prothonotary of the Supreme Court, before the next term; in failure whereof, &c., but no appeal shall be available, unless the counsel for the appellant shall state in writing, his reasons for said appeal, certifying, &c. All these pre-requisites have been complied with, and the defendants apprehend they are in due time. Plaintiffs may proceed to execution on their judgments, if certificates are not given and the appeals entered sitting the Circuit Court; but the appeal in such case is in nature of a writ of error, where the execution is begun, and is no supersedeas thereto. This action was removed to the last September term, and by the rules of the Circuit Court, no affidavit of defence was .necessary until the third term. Had it been removed to March term, then the affidavit might have been required at the second term, by the 20th rule of the court. My instructions are, that the Circuit Court directed the entry of the judgment, on the mere ground, that there was no affidavit of defence.
    Mr. E. Tilghman for the plaintiffs.
    I am authorized to assert, that the judgment was taken with the consent of the attorney for the defendants. The entry oh the record seems to shew this : “ a judgment for the plaintiff, the debt to be ascertained “by the clerk of the Circuit Court.”
   By the Court.

The intention of the legislature, and our own views in demanding the certificates of counsel in several *instances, by our rules for regulating the practice, were *124] that improper delays might be obviated, by throwing a personal responsibility on respectable gentlemen of the posses-But that object could never be attained, if the certificates sion. were to depend on mere information of facts, not agreed to by the sitting justices, nor admitted by the adverse counsel, nor within the knowledge of the person subscribing the certificate. Though the law is silent in this particular, we are decisively of opinion, that every appeal, resting upon facts not apparent on the record, should be made, sitting the Circuit Court, and the certificate then signed by counsel. The litigated matters are then fresh in the recollection both of the court and counsel, and can be truly stated. If the counsel differ in their statements, the same may be corrected by the court, according to the real circumstances of the case. — The certificate in this instance comes too late and the appeal must be dismissed.  