It is certainly a great default, that an earlier application was not made for the exemplification ; and *107 that intructions were not given to some person, to see that it was regularly made out. On that ground alone, therefore, the motion must be granted. But even if the plaintiff had not been guilty of a laches ; if it was a misfortune, and not negligence, that had prevented the seasonable arrival of the record, we should still doubt the propriety of refusing the rule.