The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-01-18

IuaOo 10 CdK0 III up lot nearing. j am 6at1Sfleu
there is no precedent for such q course. 1t is
true that continuance is q matter of dscre-
tion, but it must be regulated by some stan
dard OF law or right. When cause is once
to counsel, they are supposed to dismiss it for
the present from their minds and arrange their
time and attention for other engagements.
Hers the permission to docket was favor to
reIators, and without q regular and formal
continuance without alleging accident mistake
or fraud, it is asked that the hearing shall nov
be had. Counsel! concluding that the order
was to stand, made appointments at distant
point, and these, without fault or blame on
their part, they must now forego. 1t is said
that the cause must be taken up because the
State is party, and interests OF Importance
are involved. A court must have KNOWN and
recognized principles for lts guidance, and the
State nS suitor has no higher claim to it's
consideration or preference than the humblest
citizen. Rules of court, though extraordinary
circumstances may a5ato the rigor of their en-
forcement, should be fixed and stable.
Associate Justice Willard speaking for the
majority Of the court, said AS to the motion
to quash the writ Of error, while it was novel
question, the majority Of the court would not
occupy the time Of counsel with it's further
consideration, especially as it's consideration
was not imperatively demanded in this case.
Ihe record OF the case was before them, and
they we're Of the opinion that they could pro-
ceed to the consider alton Of the questions in
vOlved.
AS regards continuance, the court had full
power over case, Notwithstanding contin-
uance was entered they could restore it and
order argument to proceed. A case may as
well be called after the close of the docket as
during it's call The question is one Of discre-
ton, which should only be exercised upon just
and sufficient grounds.
The relator had urged public considerations
as rendering an early argument expedent; had
stated that the judgment Of the Supreme
Court was necessary, in order that further
legislation might be obtained from the General
Assembly. The majority OF the court could
not assent to the doctrine that they were not at
liberty to notice the fact that the State was
party to the record. and that the interests in
volved were public interests.
On the other hand, the only grounds of preju-
dice alleged related to convenience Of coun-
sci, which may be properly consulted. in refer
ence to assigning a day for the hearing of the
case, but is not allowed as sufficient ground in
itselffor losing term. The continuance would
be vacated and the cause restored to the dock
ct, but the respondents would be at liberty to
urge such matters as are appropriate in refer
ence to fixing convenient day for the hearing.
The court then adjourned.
- on reassembing to-day, Saturday Mr..
Chamberlain moved, by order, that Judge Will
lard be declared disqualified by reason of his
having sat in an inferior court. The point was
contested by Messrs. Cambell and Hayne, but
after consultation with Judge Hoge. (Judge
Willard being absent) the Chief. Justice de-
cided in favor of the motion, and Judge R. b.
Carpenter was accordingly duly commissioned
by the Governor, and took his seat upon the
bench.
MIR. Campbell then again moved for con-
tinuancGOfs the case, on grounds similar to
those made the previous day. They were en-
tirely unprepared to go into the case. Rule
100 OF the Appeal Court made certain cond-
tions necessary, which had not been complied
with by the other side, and taking all the cir
cumstances connected with the sudden aud
hurried manner in which the case had been
pressed for hearing without due notice, it was
proper opportunity for the exercise Of the
discretion Of the court.
Mr.. Col bin professed to be astonished at the
motion, and called for the reading of an order
which, notwithstanding the closing paragraph
of Justice Wizards decision, was signed only
this morning before the meeting of the court.
Campbell read rule one hundred. which recites
that the grounds of appeal, records citations,
alsh og council, shall hp furnish
ed counsel, aud said they had ndt heen slfp-
piled, and that this rule was of itself bar to
such a peremptory order. They could not
forego the rule without great prejudice.
Mr. Hayne added some remarks, and the
court retired for consultation. The decision
was that the order having been entered on the
minutes,it was adjudicated matter and impera-
however, that Judge Hoge did not concur in
the apparent order of Judge Willard. -
MIR. Campbell said the counsel for defendants
had nothing more to say. They had resisted
motion to set aside distinct order OF tn 9
court. They had made q motion for q contin-
uance, and both had been set aside. The ori-
ginal order of continuance was as distinct and
binding upon the court as the order they had
before them, yet they had overruled the former,
and declared they were incapable Of overruling
the latter.
reading Of the record, pending which the court
adjourned. F. Ct. DE F.