The petition for rehearing urges upon us that the overruling in Erie Railroad Co. v. Tompkins, 58 S.Ct. 817, 82 L.Ed.-, of the doctrine of Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865, under which this case was tried below, and heard here, requires the withdrawal of our opinion, and the granting of a rehearing.
We agree that the case was wrongly tried below and determined here as a matter of general law, and not one to be controlled by the applicable decisions of the Mississippi courts. We agree therefore, that so much of the opinion as sought a solution of the case by resort to the general, rather than the Mississippi law of punitive exemplary damages, must be withdrawn.
We do not agree, however, that the case should be reheard in this court. we think it plain that the petition for réüearing should be ¡denied, and the ¡reversal should stand, both because of the second reason given in the opinion for reversal, that the District Judge should, instead of ameliorating the verdict by reducing the amount of recovery, have granted a new trial, and because the case, having been tried below and heard here on an erroneous assumption that it was controlled by general law, it should go back for a trial anew under the Mississippi law. Ruhlin v. New York Life Insurance Co., 58 S.Ct. 860, 82 L.Ed.-.
*252It is particularly desirable that this course be pursued here, -for in addition to the ordinary difficulties in the way of a just disposition of a cause, which, tried on one theory below, is heard on a different one here, this case presents special difficulties. These inhere in and grow out of the fact that the suit is apparently one on an official bond, in which case punitive damages may not be recovered in Mississippi, Lizana ex rel. v. State, 109 Miss. 464, 69 So. 292, and at the same time a suit independent of the bond against the sheriff and his deputies.
It is true that the suit, though begun as a suit in the name of the state of Mississippi against the sheriff and his surety, was dismissed as to the surety company for the reason that it was not a resident of the District; but it is also true that the order dismissing the surety provided that “the said cause be and it is hereby maintained against the defendants Brabham, Cutrer and Varnardo.” It has been specifically held in this circuit, Lake County v. Massachusetts Bonding & Insurance Co., 75 F.2d 6, Id., 84 F.2d 115, that a judgment against a principal, is, where the surety has notice of the suit, conclusive evidence against the surety against any defense except that of fraud and collusion in obtaining it.
Under these circumstances, we think it of the highest importance that the procedure adopted in the Ruhlin Case supra be applied here, and that the judgment should therefore be reversed and vacated, and the cause remanded to the District Court for further proceedings under the Mississippi law, with directions to permit such amendments to the pleadings as may be necessary and proper, if it is to be tried as a suit in tort rather than one on the bond.
The motion for rehearing is denied.