¶1It being conceded that this cause is not upon the calendar, we cannot hear it. The rule of court, made some years ago, requires that appeals in non-enumerated motions, as well as others, should be placed upon the calendar; and that rule is still in force.
¶2Pice, for the respondent, suggested that counsel had come from Hew York in anticipation of arguing the appeal, and were ready to waive any objection if they could allowed to do so.
¶3The Chief Justice (after consultation).—The rule precludes an argument of the cause; but under the circumstances of this case, we are disposed to allow it to be submitted upon the points without oral argument, if that be desired.
¶4Counsel not agreeing on a submission, the cause went over.
¶5By a subsequent amendment of the calendar rule, appeals under subdivision 4 of section 11 of the Code, which are entitled to a preference, will be placed in a preferred class on the calendar of 1871.