
    [Lancaster,
    May 27, 1828.]
    STERLING against RITCHEY and another.
    APPEAL.
    A judgment for want of affidavit of defence, taken under the old rules of the Circuit Court before their formal re-adoption, the defendants.’ attorney, not knowing the ancient rules, opened On affidavit of defence afterwards filed.
    Appeal from the Circuit Court.
    Summons in debt in the Court of Common Pleas of Dauphin 
      county, not exceeding sixteen hundred dollars, to August term, 1S26, and statement filed. The cause was removed, by the defendants, to the Circuit Court of the county of Dauphin, December term, 1826. On theTOth of September, 1827, the plaintiff entered judgment for want of an affidavit of defence, which the Circuit Court refused .to open, and the defendants appealed to this court.
    
      M'Clure, for the'appellant.
    The defendants’ counsel was ignorant of the rule, and therefore it is a case of surprise, against which the court will relieve.- The'situation of the bar was peculiar. No rules were adopted. The rule under .which judgment was entered was adopted, by particular counsel, in 1795; but it was only in force between those who were parties to the agreement by which it was established. Vanatta v. Henderson, 3 Binn. 417, This is an application to the discretion of the,court. We do-not object to the judgment standing as a security.
    
      Elder, contra.
    
    The rule was made.formally and originally by the court. The judgment is within the very letter of the rule.' In the Common Pleas, where the action was brought, there is just such a rule;
    
      M'Clure, in reply.
   The opinion of the court was delivered by

Gibson, C. J.

The .Circuit Court system, was restored after having been out of use for' nearly twenty years; and few remain at the bar who. are familiar with its rules of practice; and some of the judges of this court entertained more than a doubt whether' those rules were ipso facto restored along with the court. It was, however, necessary to adopt some practice as to pleading and noticing causes for trial, and those rules were referred to, it would seem, by common conseñt, as furnishing a guide. .But the doubts which were entertained, rendered-it necessary for this court to act on the subject; and the old rules were accordingly adopted, with a fewT trifling alteration’s, in October last, a short time after the judgment in this ease was signed for want of an affidavit of defence. ' It is obvious, therefore, that it is a case of peculiar hardship. By making now the affidavit which the rule required to be made then, the defendant, has removed all suspicion of trifling or backwardness; and the attorney testifies that a want of compliance with the rule was -occasioned by an ignorance of its existence. A -court ought not to enforce its rules so rigidly as to produce injustice; and we are satisfied that the peculiar circumstances of the case entitle the appellant to relief. ®

Judgment of the Circuit Court opened so far as to let the defendant into a defence,.but to stand as a security for what may be found due. 1  