The plaintiffs were not nonsuited upon the principal question involved in the controversy, but for the failure to establish a subordinate fact, the retainer of Mr. Haven, about the existence of which there can be no doubt. They had, I think, exercised due diligence in preparing the cause for trial, and had good reason to believe that the evidence which they could produce would fully establish the retainer; but their evidence unexpectedly failed them on the trial, and they ask a new trial, on the ground of surprise. Although new trials are not often granted upon that ground, I think the plaintiffs have made ont a case which calls for re' lief in that form.
Ordered, that the motion be granted on payment of the defendants’ costs of the circuit and subsequent proceedings.