Same Case — On a Re-hearing.
Rost, J.In the second brief of the counsel for the appellant, Goodrich, filed a week after the case had been argued and submitted, the point was made, for the first time, that no order of execution had been obtained from the District Court, on the certificate of the clerk of the Supreme Court that the transcript of the appeal taken by the defendant in the main suit had not been filed. No such order being found in the record, we considered the objection well taken, and reversed, as premature, the judgment rendered upon the rule against Goodrich, as surety on the bail bond.
The plaintiff’s counsel has applied fora re-hearing on the following grounds: That the case was argued on the 18th of May, and on that day a printed brief was filed by the counsel of the surety, Goodrich ; that the point upon which the case was decided was not made, either in argument or in the first brief, and that the second brief never was communicated to him; that had this point been made at any time before the case was submitted to the court, he would have applied for a ceriiorati. He has annexed to his petition a copy of the order of execution in due form and properly certified, and prays that the *1015court may receite the additional extracts of the minutes as if brought up1 on a certiorari, and decide the case accordingly.
We see no good reason for refusing this application. The filing of a new ground of defence, after the case had been argued and submitted, operated asurprise against which the plaintiff is entitled to relief; and, under the peculiar circumstances of this case, we feel authorised to extend it to him without further delay. The ground on which we were misled into a decision adverse to bis claim had no existence, and the judgment should have been affirmed.
Judgment affirmed.