Supposing  this  to  be  so,  and  it  may  be,  the  paramount  object
— i.  e.  to  adjudge  the  very  right  between  these  parties,  upon  the
substantial  merits  of  the  contest — will  be  best  attained  by  the
course  adopted  on  the  circuit.
28


434  APPEALS  AT  LAW.
Mobleyw.  Mobiey.
One  matter  of  complaint  is,  that  the  defendant's  counsel  was
absent  when  the  motion  was  granted — the  same  motion  having
been  refused  on  a  day  previous  when  he  was  present.  The
reply  to  this  is,  that  when  first  offered,  the  motion  was  not  enter-
tained because  the  cause  was  not  yet  reached  on  the  call  of  the
docket,  and  that  the  motion  was  finally  made  at  the  close  of
business,  as  motions  usually  are ;  the  more  appropriately  then,
it  is  said,  because  the  case  had  been  continued  to  }he  next  term ;
necessarily  then,  it  is  added,  if  made  at  all,  in  such  time  as  to
avoid  the  objection  of  supineness  and  surprise  on  the  adverse
party.
