
    James F. Gamble vs. Joseph G. Jenkins.
    
      Practice — Discontinuance—Insolvent Debtors’ Ad.
    
    An order for discontinuance may be made" before a judge at Chambers and out of the District, and if the order be recorded in the minutes after the orders of the previous term and before those of the next, it will be sufficient.
    If defendant has not appeared, he has no right to -notice of a motion for discontinuance.
    Plaintiff may discontinue pending defendant’s application for the benefit of the Insolvent Debtors’ Act, at the suit of another creditor — the purpose of such discontinuance being to prevent the discharge from affecting the plaintiff as a suing creditor.
    BEFORE WITHERS, J\, AT CHAMBERS, JUNE, 1859.
    In March, 1853, the plaintiff issued his writ in debt against the defendant, returnable to Spring Term, 1853, of the Court of Common Pleas for Fairfield District. The writ was duly served, and no appearance was entered by the defendant. In July, 1853, the defendant, having been arrested at the suit of another creditor, applied for the benefit of the Insolvent Debtors’ Act. At Chester Court, during the week preceding the sitting of the Fall Term of the Court of Common Pleas for Fairfield, the plaintiff applied for and obtained an order from his Honor, Judge Withers, for leave to discontinue. The application of,the defendant was heard the nest week, at Fairfield, and he was admitted to the benefit of the Act. The order for leave to discontinue was recorded in the minutes of the Court for Fairfield after the minutes of Spring Term, 1853, and before the minutes of Hall Term. No notice of the motion was given to defendant. In 1859, under some proceedings in the Court of Equity, the sealed note, which was the canse of action on which the writ in debt was sued out in 1853, was set up as a demand against the defendant.
    In June, 1859, the defendant moved before his Honor, Judge Withers, at Chambers, for an order to vacate and set aside the order of discontinuance made at Chester, in 1853. This motion his Honor refused.
    The defendant appealed and now moved this Court to vacate and set aside the order of discontinuance on the grounds:
    1. Because said order was granted at Chambers, on motion then and there made.
    2. Because said order was granted as stated in 1st ground, without any notice having been given to the defendant that it would be then and there made.
    3. Because said order was not made at the sitting of the Court of Common Pleas at Fairfield Court House, said writ being returnable and returned to said Court.
    4. Because said order is not recorded in the minutes of any Court.
    5. Because the granting of said order was to that extent defeating the provisions of the Insolvent Debtors’ Acts.
    Bion, for appellant.
    
      Boylsion, contra.
    The appeal is two-fold — 1st, from the order of discontinuance, and, 2d, from the refusal of Judge Withers, in 1859, to vacate the order granted by him, 25th October, 1853.
    1. As to the first, the appeal cannot be maintained, because there was no notice, according to 77th Rule of Court, nor for more than five years after the granting of said order, nor for more than four years after plaintiff’s death.
    2. As to the second, (not to refer to the various reasons which readily suggest themselves,) if the order was void, because granted in vacation, the order to vacate and annul the same would be equally improper and void.
    If the defendant has any remedy, it is not by either of the modes now adopted.
    If these views are correct, (and they are seriously entertained and urged,) there is an end of the matter, and the appeal, in both aspects, must be dismissed. It cannot possibly be entertained, on the motion to vacate the order, because the 77th Eule has not been complied with. But if this Court should hold above objections not well taken, and choose to consider the appeal on its merits, it is respectfully submitted that the order was properly made, originally, and should not now be vacated.
    We have no Eule of Court or Statute upon the subject, and are remitted, (under 87th Eule,) to the practice at Westminster.
    Now, it is said, that “Eules are.of four kinds: *** thirdly, such as were anciently moved for at side-bar, and are thence called side-bar rules; of this nature are: the rules for time, or further time, to declare; for the sheriff to return the writ or bring in the body; to be present at taxing costs; to discontinue; or for a scire facias to renew a judgment under ten, or above seven years old, &c. These rules may be had at the office of the Clerk of the Eules, at any time, either in TERM OR VACATION.” 1 Tidd, 436, 2d Am. ed., 1807. It will not be denied, that “ plaintiff may discontinue, as a matter of course, any time before verdict, or judgment on demurrer; 1 Salk. 178, Bar. 307; and even after judgment on demurrer, plaintiff, upon motion in Court, may soineties get a rule to discontinue.” 2 Sellon’s Crompton, 335. '‘Discontinuance, in a civil suit, is either of process or pleading. The former, before judgment, is the act of the clerh, but, after judgment, it is the act of the Court," &c. 1 Tidd, ut supra, 626. The rule to discontine is a side-bar rule, and may be had, as a matter of course, from the Clerh of the Rules, at any time before trial or inquiry. 1 Tidd, 628. It is to be remembered, that in this case no declaration had been filed, and the discontinuance was of the process only, (the writ.) See also Tomlin’s Law Diet. 550, tit. Discontinuance.
    There seems to be no case in our reports on this point. It is decided in more than one case, that plaintiff must have leave to discontinue, but whether such leave may be granted in vacation, or is necessarily confined to term, has never been decided. All our cases on this subject are really questions of amendments of pleadings, where it is sought to discontinue, as to one of several plaintiffs or defendants, for the purpose of prosecuting the suit further, but not, as at present, where the plaintiff simply asks authority to withdraw his writ from the office and stop.
    At Westminster, the practice on discontinuance was to get appointment from the prothonotary to tax costs, serve copy thereof on defendant’s attorney, &e. But we have no such practice in any case, and if we had it could not apply to the present case, where defendant had no costs to tax, (not having appeared,) and no attorney to serve.
    Our 67th Eule of Court recognizes, inferentially, the rule to declare, or for further time to declare, (which is not a motion of course,) as a side-bar rule, by directing a new practice, viz.: that such rule would only be granted at chambers after notice. So here, the Court has power to establish the rule, that a motion to discontinue will only be granted in . vacation after notice, but until such rule, notice is not necessary.
    In Frazer ads. McLeod, 2 Bay, 407, it was held that a rule to plead double should not be granted at chambers, &c. But there is no analogy here. That never was a side-bar rule, but was founded in statute, (4 Anne, ch. 16; 2 Stat. 432.) Although the exceptions are few, such leave is not matter of course, and would be refused, as if defendant proposed to plead the general issue and a tender, &c. Sext vs. Jarrell, 2 Strob. 175.
    But a motion to discontinue, whether defendant has or has not appeared, is of course, and voluntary, whether defendant object or not. As to want.of notice, defendant was entitled to none; for if he could even by possibility object, which he could not, he would not have the right to be heard.
    An analogy may be found in the last of the side-bar rules, referred to above,, from Tidd, 436. The reference to scire facias there, seems analogous to our practice, modified by our Act of 1827, (6 Stat. 324,) where a judgment and fi. fa. thereon may be renewed,.under seven and above four years old, by application to the clerk, at any time, either in term or vacation.
    If plaintiff had a right to discontinue, as a matter of course its effect upon defendant, who proposed to apply for the benefit of Insolvent Debtors’ Acts, could not be considered. The filing of his petition and schedule did not affect his benefits or liabilities under the Act. The il exhibiting of his petition” means his application to the Court for a discharge and not the filing of his petition and schedule with the clerk. Sagood vs. Robinson, 7 Rich. 43. Defendant might not apply, though he had given notice; amendments might have been forced into his schedule; his application might have been refused, and the plaintiff, who had discontinued, could not obtain any advantage therefrom, and could not then or now be placed in statu quo.
    
    No damage accrued to defendant by discontinuance, nor, has he a right to complain. If plaintiff had shown that defendant was not entitled to his discharge, it could not have benefitted plaintiff) who did not make the .arrest and had no bond. If the present practice is not acceptable to the Court,: a new rule for the future may be established, but it should not affect this case.
   The opinion of the Court was delivered by

O’Neall, C. J.

In this case, the first ground of appeal presents the question, whether a motion to discontinue can be made at chambers?

We see no reason for holding otherwise. A motion to discontinue is very much of course. It generally is no disadvantage to the defendant. Ordinarily he neither can nor desires to make any objection. Here the defendant could not have been heard against the motion. He did not appear to the case.

The second ground presents no difficulty. The defendant did not enter an appearance: .he was therefore in default and had no right to notice.

The third ground is also without merits. It might be made anywhere the judge heard it. It was not to be made sedente curia, nor in the district where the Court sat. A judge’s power extends over the whole State. On the fourth ground, it may be remarked, that the order was recorded in the minutes after Spring Term, and before the commencement of Pall Term. This was enough.

As to the fifth ground, I do not perceive any objection to the order, by the fact, that the plaintiff withdrew his case rather than that the defendant should be altogether discharged from the debt. . This he had the right to do.

The motion to reverse the decision below is dismissed.

Wardlaw, J., concurred.

Motion dismissed.  