¶1The opinion of the court was delivered by
¶2The .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. ®
¶3Judgment 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