
    Jackson, ex dem. Carey and Goodell, against Sutphen.
    Where a cause is called on the calen^ec? cuit, but not wards^it^s no excuse against motion for judgment as in ¿fatn^¡ usual practice at the circuit has been to call over the calendar on the first day, without takdel ¡‘unless the not consider regula? and orderly call,
    On motion for judgment as in case of nonsuit, for not going to trial at the Otsego Circuit, in September last, it was i ,• opposed on the ground that it had been the practice of the Circuit Judge in that county, at the former Circuits, to call over the calendar on the first day of the Circuit, but not to take it up in order till the second day; that such was the case at the last September Circuit, though the Judge did not ,, , , . ^ ° . declare that he intended to adopt the same practice as formerly; and the cause was not reached at the subsequent Call.
    
      H. Lathrop, for the motion.
    
      L. Beardsley, contra.
   Curia.

We cannot recognize any such practice as is contended for. The Judge gave no intimation that the first call of the calendar was considered by him, merely informal or irregular. We must take it"to have been the regular and ordinary call. It was the duty of the plaintiff to have been ready for trial, when his cause was first called.

Motion granted.  