Allen against Calhoun and others

Allen against Calhoun and others. UTICA, Aug. 1826. The Supreme court will not interfere with the practice of the correction of his Calendar It seem, a cause should be placed there, according to the date oldest issue in it. L. Beardsley moved to set aside the inquest taken against the defendants, at the last Otsego circuit, on the ground, (among others,) that though the notice of trial tor circuit was not for an inquest ; yet an inquest was taken by the plaintiff out of its order on the calendar. There were issues of different dates in the cause ; the first was the general issue ; and the others were joined,- at a later period, by replication to the defendants’ special pleas. The cause stood on the calendar as of the last date ; but on motion of the plaintiff’s counsel, on the third day of the circuit, it was raised to the date of the first, by order of the circuit judge; called as of that date, and an inquest taken. J. Brackett and A. Stewart, contra. [MAJORITY — Curia.] Curia. The correction of the circuit calendar belongs exclusively to the judge ; nor will we interfere with his rules of practice on this head. Besides, he proceeded on the same principle which we have adopted in the correction of our own calendar. (Griswold v. Stewart, 3 Cow en, 16.) There is, however, an affidavit of merits ; and the defendants may take their motion on payment of costs; they having accounted for not appearing at the trial. Rule accordingly.