Givens v. Robbins

ORMOND, J. According to our practice, the granting or refusing permission to continue a cause, is a matter of discretion with the court below, and cannot be reviewed in this court. We think it proper, however, to say, that we entertain no doubt that an application for the benefit of the bankrupt law, will not entitle a party who has been sued, to a continuance of his cause. The act of Congress does not contemplate that the party applying for the benefit of the act, shall be released from his debts until he obtains'his discharge and certificate according to the rules prescribed in the 4th section of the law; and as it is altogether uncertain whether he may ever obtain his discharge, the mere application of the debtor, is no ground for delaying the creditor in the prosecution of his suit. But, although for the reason given, the question of continuance, as such merely, cannot be reviewed in this court; yet, when made as to two out of three joint defendants, it becomes necessary to consider what are the consequences attending it, as it regards the other defendant. At common law, a chasm in the proceedings by a neglect to continue the cause, or the omission in a plea, or replication, to answer the whole matter of the bar, or declaration was a discontinuance and defeated the action. So a discontinuance as to one defendant, is a discontinuance as to all. [6 Com. Dig. Pleader, w. 2,3, 4; Tippet v. May, 1 B. & P. 411; Keeble v. Ford & Vining, at the last term.] By the proceeding here, the continuity of the cause has been destroyed; the action, which at its commencement, was joint, has become several, and the consequence is, that it is discontinued. By statute in this State, a discontinuance is permitted against those on whom the process is not served, without producing this result. [Aik. Dig. 267.] But there is no statute authorising the course pursued in this case, and the judgment must therefore ba reversed.