We have sometimes acted on facts established by affidavit, to determine the regularity of an appeal, but not a question of merits. By the retraxit of the appeal the judgment became absolute, and the application to reinstate it for the subsequent discovery of collusion, being the only accessible mode of letting the appellant into a defence, was in effect a motion to open the judgment, which we have repeatedly ruled not to be a subject of error. There may be much hardship in the case, but we cannot relieve it.

Judgment affirmed.