#### Jesse Rountree, Plaintiff in Error, v. William Stuart, Defendant in Error.

ERROR TO MADISON.

Where a party amends his narr. hy setting out the bond on which suit is brought as the statute requires, it is error in the plaintiff to take judgment at the same term if a continuance is prayed for by defendant.

Where a statute declares that in a certain case a continuance shall be granted, it is error in the court to refuse it.

Opinion of the Court by

Justice Reynolds.

Rountree filed a demurrer to the declaration of Stuart in the court below— the demurrer was sustained. The plaintiff amended his declaration by setting out the original bond. The question then presents itself—ought the cause to have been continued under the third section of the “ act regulating the practice at law and in chancery ? ”

In this case it is not necessary to decide the question, if the continuance or non-continuance of a cause be such a judgment upon which a writ of error will lie, as the statute in this case is peremptory. It requires the declaration and writing on which the action is founded to be filed ten days *74before the return of the writ, or if not the case shall be continued.

This is positive. There is some reason in this. The party has not then ten days before the court to prepare for his defense. The plaintiff erred in taking judgment at the same term at which he got leave to amend his declaration. Therefore the judgment ought to be reversed, but as the court is divided in opinion, it is therefore affirmed. (1)

Judges Browne and Wilson, not hearing the argument, gave no opinion.

(1)

This decision has frequently been humorously criticised on account of the last expression in the opinion : “ Therefore the judgment ought to be reversed; but as the court is divided in opinion, it is therefore affirmed.” This, perhaps, is not the most classical expression that might have been used, but it amounts to simply this—that in the opinion of Justice Reynolds the decision of the court below ought to be reversed; but as the members of the court who were present were equally divided, it follows that it must be affirmed. It is not a decision of the court; and possibly ought not to have been reported by Judge Breese. Four-judges at that time composed the court, only two of whom were present, and they differed in opinion; but still there can be very little doubt that the views of the judge, whose opinion it was, were in substance correct. The case certainly ought to have been continued. See note to Crane v. Graves, ante, p. 66. Scott v. Cromwell, ante, p. 25.