
    *Hale v. Burwell and Wife.
    January Term, 1857.
    Richmond.
    Absent, Nash, J.
    i. Continuances — Passing over Terms — Failure to Continue Cause. — The continuance of a case, in the county court, from April term to June term, or from November term, 18Í7. to March term. 1848, passing over the intermediate terms, or the fail-lire either to continue or otherwise notice a cause at any term to which it was regularly continued, does not operate a discontinuance or dismissal of the cause.
    
    2. Milts  — Erection — Application--Civil Action — Removal ot Cause-Statute. — An application for permission to build a mill is a civil action, which, under the fourth section of the act 'of March, 1843, Sess. Acts, p. 18,  may he removed from the county to the circuit court, after it has been pending in the former for twelve months.
    3. Same — Same—Same—Revival of Cause. — If, prior to the Code of 1849, any parties resisting such application died, the proceeding might have been revived against his heirs, not by virtue of any statute authorizing revivals, but from the very nature of the statutory proceeding by the writ of ad quod damnum. If there is doubt about this, however, the comprehensive language of the new Code, in respect to revivals, leaves no room for doubt as to any such case arising since that Code.
    In December, 1846, Samuel Hale petitioned the County Court of Franklin for leave to build a water grist and saw mill on Gill’s creek, he owning the land on both sides. At his instance a writ of ad quod damnum issued, and the jury summoned under the writ ascertained that the lands of Patrick Hix would be injured *to the amount of s>225, that no other lands would be injured by it, and that it would not be injurious to the health of the neighborhood. The writ was returned by the sheriff to February term, 1847, and thereupon Hix was summoned to appear at the March court, to show cause why leave should not be granted to Hale, according to his motion. Hix appeared and resisted the motion.
    After the case had been pending sometime, Hix died, and the cause was revived against his heirs-at-law, Armistead B. Burwell and Elizabeth Mary his wife. The case was continued regularly from term to term, except that at the April term, 1847, it was continued to the June term, at the November term, 1847, it was continued to the March term, 1848, and at the July term, 1848, no notice was taken of it, either by continuance or otherwise.
    The case was pending in the county court for more than twelve months, and at the August term, 1849, it was removed to the circuit court, on the plaintiff’s motion. At the May term of that court in 1850, the defendant moved the court to dismiss the case —1st. Because it should have abated by the death of Hix, and could not be revived against his heirs-at-law. 2d. Because it was improperly removed to the circuit court. 3d. Because it was discontinued in the county court by the failure to note continuances and miscontinuances above stated.
    The court, deciding the first point in accordance with the defendant’s view, dismissed the case, without deciding the other questions.
    From this judgment the plaintiff Hale appealed to this court.
    Grattan, for appellant.
    Garland, for appellee.
    
      
      Continuances — Passing over Terms. — The principal case was cited with approval in Harrison v. Com., 81 Va.494. Seefurther.on this subject, monographic note on '‘Continuances" appended to Harman v. Howe, 27 Gratt. 676.
    
    
      
      Amis v. Koger, 7 Leigh, 221, decided otherwise, but that case arose before the act of 16th April, 1831, Sup. R. C. 1819. p. 142. § 21, an extract from which is as follows: “If any of the said courts shall not sit in any term, or snail not continue to sit the whole term, or before the end of the term, shall not have tried, heard and determined all the matters ready for decision, all suits and matters depending in court and undecided, shall stand continued to the next succeeding term.’’ This is amended and reenacted in Code of 1849, p. 627, § 16.
    
    
      
       Hills. — See monographic nota on “Mills and Mill-dams" appended to Calhoun v. Palmer. 8 G-ratt. 88.
    
    
      
      Amen ded and re-enacted in Code, p. 657, § 1, 2.
    
    
      
       See Code, p. 656, ch. 173.
    
   THOMPSON, J.,

delivered the opinion and decree of the court, as follows:

The court is of opinion that the cause was not discontinued *in the county court by reason of the failure regularly to note on the record its continuance from time to time, or from term to term, and this the more especially, as after the several miscontinuances or failures to continue to the next succeeding terms, relied on as operating a discontinuance, the cause was regularly continued subsequently by the consent of the parties.

The court is further of opinion, that it was properly removed from the county to the circuit superior court, under the fourth section of the act of March 28, 1843, Sess. Acts, p. 18. upon the authority of Harrison v. Middleton, 11 Grat. 527, and Kincheloe v. Tracewells, Ibid. 587.

And the court is further of opinion, that the proceeding did not abate or determine by the death of Hix, the owner of the land sought to be condemned by the writ of ad quod damnum, but was properly continued in court to be proceeded in and prosecuted to final judgment against his real representatives, Armistead B. Burwell and Elizabeth Mary his wife, by a scire facias and order of revival; the court regarding the scire facias as a notice merely to the new party in interest of the proceeding commenced in the lifetime of the ancestor, and the order of revival as a certificate of record that they had been notified. The court is of opinion, that this case is not within the letter or purview of the statutes providing for the revival of actions, real, personal or mixed, by scire facias, but that it results from a reasonable construction of the law, from the very nature of the statutory proceeding authorizing the condemnation of land by writ of ad quod damnum for the erection of mills, which requires all parties interested to be summoned, upon the return of the inquisition, to show cause against granting the leave, that if pending the proceeding a land owner who has been notified dies, he who succeeds to his rights in the land may and must be notified, and thus made a party to the proceeding before the judgment granting the leave. To hold that the death of such a party determined and abated the *whole proceeding, and made it necessary for the applicant to -begin de novo and summon the new party to answer to or show cause against a new application, instead of summoning him to answer to the one which had progressed almost to final determination in the lifetime of his ancestor, would be a construction of the statute too absurd, and in its consequences too inconvenient, to be tolerated. The question raised in this case, for the first time, so far as we are informed, under the old iaw, is one of but little interest or importance, since it never can arise under the more comprehensive phraseology of the Code of 1849, which took effect the 1st July, 18S0.

And so it seems to the court that the judgment of the circuit superior court, rendered on the 14th May, 1850, dismissing the cause and adjudging costs against the plaintiff, is erroneous. It is therefore considered that the same be reversed and annulled, and that the plaintiff in error recover against the defendants in error his costs by him expended in the prosecution of his writ of supersedeas here. And it is ordered that this cause be remanded to the Circuit Court of Franklin county, for further proceedings and final judgment to be had therein according to law and the rights of the parties.

The other judges concurred.  