
    *Sheffield against Watson.
    A mistake by an attorney, of a rule of practice may prevent judgment as in case of nonsuit for not going to trial, but will not excuse costs.
    Hopkins, for the defendant, moved for judgment as in case of nonsuit for not going to trial.
    Woods, contra.
    The cause was called on, but as there were other causes on the day calendar, one of which actually occupied the court the whole day, the plaintiff’s attorney, not being quite ready, thought he should be entitled to bring it on the next day, the day calendar not being gone through; but found he was put down to the bottom of the calendar for the circuit. This, therefore, is a plain mistake of the rules of practice, which ought not to injure the plaintiff.
    
      Hopkins.
    
    The plaintiff clearly was not ready; therefore equally in fault, whether the rule was as he imagined, or not.
   Radcliff, J.

Acting under that belief, he did not prepare himself.

Hopkins asked for a stipulation and costs.

Per Curiam.

The excuse is certainly not sufficient to exonerate from costs. If admitted in one case, it must be in all; and, however the good faith of the plaintiff’s com duct, and our belief of it, may deny the judgment moved for, to refuse costs would do away the effect of the rule. The plaintiff must stipulate.

On stipulation and costs, motion denied. 
      
      
         See Russell v. Ball, post, 252.
     