
    *Fox, Administrator, with the Will Annexed, of Ragsdale, v. Govan.
    Saturday, October 7th, 1809.
    Delay Case — Frivolous Bill of Exceptions. — Although a palpable frivolous bill of exceptions to the opinion of the Court below, is not sufficient to prevent this Court from taking" up a cause out of its turn on the docket, as a delay case; yet, if the point be in any degree doubtful, it will not be so taken up.
    Warden, for the appellee, moved to take up this cause out of its turn, as a delay case, notwithstanding there was a bill of exceptions in the record. But he contended, that the exceptions were merely frivolous, being- to the opinion of the Court, refusing a motion for a continuance.
    Wickham, for the appellant,
    had 'no objection to bringing on the cause at any time; but, as counsel for the appellant, he wished to be heard. He would never contend, that the rule of the Court for taking up such appeals as were merely for delay, out of their term on the docket, should be evaded, by introducing into the record a frivolous bill of exceptions; but this, he observed, was not such a case. The principle involved in it had been recognised in the case of Chisholm v. Anthony,  in this Court.
    The case was this. James Govan brought an action of debt against John Fox, administrator, with the will annexed, of Drury Ragsdale, in the County Court of King William, on a bond of his testator. At the March term, 1807, the defendant pleaded “payment;’1' upon which issue was joined: at the August term following, he moved the Court for a continuance of the cause till the next term, on affidavit (made a part of the record) that “he had been prevented, since the last Court, by indisposition, from obtaining a settlement o± his administration account, &c. that commissioners were appointed for that purpose; and that he was desirous to obtain a settlement with all speed.” The bill of exceptions further states, that, by the next term, the defendant expected to have the settlement of his account aforesaid recorded in Court; “so as that by ascertaining *the state of the assets in his hands, he might know whether it would be necessary for him to amend his plea.” But the Court upon seeing, among the papers in the cause, a memorandum filed containing a statement of the bond on which suit was brought, with a calculation of interest up to the time of several payments which had been made; and also a mortgage from the testator for the same debt, (which statement and mortgage are set out at large,) refused to continue the cause. A verdict was obtained against the defendant, and judgment thereupon, which, on appeal to the District Court of King and Queen was affirmed. From that judgment the defendant again appealed to this Court.
    
      
       1 Hen. & Munf. 27.
    
   JUDGE) ROANE)

was opposed to taking up the case. There might be sufficient grounds for continuance. Where a bill of exceptions is palpably frivolous, and the Court can have no doubt of it, the cause will be taken up as a delay case. But, without giving any opinion on the merits, he did not think this such a case.

JUDGE) TUCKEJR

thought there were prima facie good grounds for the indulgence asked for by the appellant; especially as the creditor had thought proper to commence an action on the bond, by which the executor might eventually be charged personally, instead of pursuing his remedy on the mortgage. He mentioned the case of Hook v. Nanny and others in which this Court had reversed *a judgment, because the Court below had refused a continuance when it ought to have been granted. The case of Chisholm v. Anthony, turned upon the equity of allowing *an executor or administrator to amend his plea, as further information of the state of the assets might render it necessary.

JUDGE FLEMING

said, it was the unanimous opinion of the Court, that the cause should not be taken up as a delay-case. 
      
       Hook v. Nanny and Others.
      November 9,1805.
      Order Book, No. 5, p. 239, MS.
      Continuances — Discretion of Court. — A Court, in granting- or refusing a continuance of a cause, ought to exercise a sound discretion. If, therefore, a parts7- be ruled into a trial, when it appears from the facts stated in a bill of exceptions, that he was entitled toa continuance, the judgment obtained against him, will, for that cause, be reversed by a Superior Court.
      This was an action of trespass, assault and battery, and false imprisonment, brought by the appellee, Nanny, and live others, her children, in the County Court of Montgomery, for the recovery of their freedom. Plea, that the plaintiffs are slaves, and the property of the defendants. Replication, that they are free persons, and not slaves.
      At the trial, the defendant (Hook) filed three several bills of exception to the opinion of the Court, one of which was in the following words: “On this cause being called, the defendant, Hook, moved the Court for a continuance, stating, on oath, that one of his counsel, on whose assistance he materially relied, was absent. He further stated, that Biram Ballard was a material witness, and, without whose testimony, he could not safely go to trial; that he had enclosed a subpoena in a letter directed to Alexander Smyth, one of his counsel, to be by him conveyed to the sheriff of Grayson, in which County the witness resided; that the letter was neglected to be delivered by the person to whom it was confided; that the person to whom it was confided was the Deputy Clerk, who did not know the letter contained a subpoena. He further stated, that he had recently discovered testimony, which he conceived very material, in the state of North Carolina, which he had not been able to procure. On these facts, the counsel for the defendant founded the motion for a continuance, as it was the first time the cause was called. But the Court overruled the motion; the counsel for the plaintiffs agreeing to admit a certain affidavit taken by the defendant, which was said to contain some of the information thus lately discovered; and determined that the cause .should come tb trial: the defendant’s counsel objected, and, to save the benefit thereof, prayed that this his bill might be sealed, which was done.”
      Verdict, that the plaintiffs were entitled to their freedom, and judgment thereon, in the County Court,from which an appeal was taken to the District Court, holden at the Sweet Springs, where the judgment was affirmed, and Hook again appealed to this Court.
      Saturday, November 9, 1805. The opinion of the Court was, that the judgments were erroneous in this: “that the cause ought to have been continued for one term, on the motion, and at the costs of the said John Hook, for the reasons assigned by him m his first bill of exceptions.” Judgments of the District and County Courts reversed, verdict set aside, and a new trial directed.
      [In the case of Woods and Bemis v. Young, 4 Cranch, 237, the Supreme Court of the United States decided differently: being of opinion that, after a cause is at issue, the granting or refusing a continuance is “merely a matter of favour and discretion;” and that the Court above “cannot look into the merits of the question, whether the Court below ought to have granted a continuance of the cause.” — Quere, as to the propriety of the decision in that case, which was submitted without argument, and seems not to have been fully considered. Courts may and must often exercise a discretion; but it has always been held, that it must be a sound and legal discretion. Were it otherwise, a party might be as much aggrieved by an arbitrary or erroneous exercise of discretion during the progress of a cause, as by the most erroneous opinion on the final judgment; and yet in one case he could obtain redress before a higher tribunal, but not in the other.] — Note in Original Edition.
     
      
      Continuances — Discretion of Court. — in support of the well settled rule that a motion for a continuance is addressed to the sound discretion of the court under all the circumstances of the case, the principal case is cited in Welch v. Com., 90 Va. 321, 18 S. E. Rep. 273; Phillips v. Com., 90 Va. 403, 18 S. E. Rep. 841; Walton v. Com., 32 Gratt. 864; Welch v. County Court, 29 W. Va. 69, 1 S. E Rep. 341. See foot-note to Hewitt v. Com., 17 Gratt. 627, and mono-graphic note on “Continuances” appended to Harman v. Howe, 27 Gratt. 676.
      Same — Mistake.—The principal case is cited in Myers v. Trice. 86 Va. 838, 11 S. E. Rep. 428, for the proposition that when it appears in the progress of a trial that a cause, if required to proceed, will suffer from tbe bonest mistake of tbe party or bis counsel, a continuance should be granted. But tbe mistaken advice of counsel not to prepare for trial is insufbcient. See tbe principal case cited in West v. Logwood, 6 Munf. 496.
     
      
       1 Hen. & Munf. 27.
     