
    MITCHEL & AL. vs. GERVAIS,
    ante 568.
    East'n District.
    June, 1824.
    A rehearing will not be granted on a technical objection, if points have not been filed.
   PORTER,J.

delivered the opinion of the court In this case an application - has been made for a rehearing, on the ground that the court in making up its opinion took as proved the written contract between the plaintiffs and Jackson, whereas the record shews that the instrument was produced only on the first trial.

We have again examined the record, and we find that the paper to which we referred in our former decision, is there stated to have been given in evidence when the case was first tried ; and it does not appear it was offered on the second.

The counsel for the defendant, however, insists upon enforcing a rule of this court,that no rehearing shall be granted, when the party applying for it has failed to file the points on which he relys, before the case is argued.

To this objection we are obliged to yield. The rule declares this penalty, and if this case does not offer one for its application, no other can. We deem it important too for the regularity of our practice to enforce it; it is the most effectual means we have, of compelling an observance of a regulation highly useful to the court, and the parties litigating; one which is too frequently neglected.

In the instance before us, the objection is one of form alone; we see from the proceed-logs that such a contract was in existence, and that it was once proved contradictorily with the defendant in this suit.

The rehearing is refused.  