CONTINUANCE (Lat. continuere, to continue).
In Practice The adjournment of a cause from one day to another of the same or a sub sequent term.
The postponement of the trial of a cause.
In the ancient practice, continuances were en tered upon the record, and a variety of forms adapted to the different stages of the suit were in use. See 1 Chitty, Plead. 421, n , 3 Blackstone, Comm. 316. The object of the continuance was to secure the further attendance of the defendant, who having once attended could not be required to attend again, unless a day was fixed. The entry of continuance became at the time mere matter of form, and is now discontinued in England and most, if not all, of the states of the United States.
Before the declaration, continuance is by dies da toe prece partium ; after the declaration, and before issue, oined, by imparlance; after issue joined, and before verdict, by non mieit breve; and after verdict or demurrer, by curia advieare vult. 1 Chitty, Plead. 421, n., Bacon, Abr. Pleas (P), Trial (H); Comyna, Dig. Pleader (V); Stephen, Plead. 31. In its modern use the word has the second of the two meanings given above.
2. Among the causes for granting a continu ance are absence of a material witness. 2 Dall. Penn. 98; 4 Munf. Va. 547; 10 Leigh, Va. 687 ; 3 Harr. N. J. 495; 2 Wash. C. C. 159; and see 1 Mass. 6; 1 Const. So. C. 234; 2 Ark. 33; 9 Leigh, Va. 639; 18 B. Monr. Ky. 705 ; that he must have been subpoenaed, 1 Const. So. C. 198 ; 10 Tex. 116; 18 Ga. 383; see 2 Dall. Penn. 183; 3 Ill. 454; but in many states the opposite party may oppose and pre vent it by admitting that certain facts would be proved by such witness, Harp. So. C. 83; 7 Cow. N. Y. 369; 1 Meigs, Tenn. 195 ; 5 Dan. Ky. 298; 2 Ill. 399; 15 Miss. 475 ; 33 id. 47; 9 Ind. 563; and the party asking de lay is usually required to make affidavit as to the facts on which he grounds his request, 10 Yerg. Tenn. 258; 2 Ill. 307; 16 id. 507 ; 7 Ark. 256; 1 Cal. 403 ; 8 Rich. So. C. 295, and, in some states, as to what he expects to prove by the absent witness, 5 Gratt.17a. 332; 12 111.
459; 13 id. 76; 10 Tex. 525; 4 McLean, C. C. 538; in others, an examination is made by the court, 2 Leigh, Va. 584; 7 Cow. N. Y. 386; 4 E. D. Smith, N. Y. 68 : inability to obtain the evidence of a witness out of the state in season for trial, in some cases, 1 Wall. C. C. 5; 3 Wash. C. C. 8; 4 McLean, C. C. 364 ; 3 Ill. 629; and see 2 Call, Va. 415 ; 2 Caines, N. Y. 384; 1 Miles, Penn. 282; 23 Ga. 613 ; 12 La. Ann. 3 ; 1 Pet. C. C. 217: filing amend ments to the pleadings which introduce new matter of substance, 1 Ill. 43; 2 id. 525; 4 Mass. 506; 4 Mo. 279; 8 id. 500; 4 Blackf.
Ind. 387; 6 id. 419; 1 Hempst. C. C. 17; see 6 Penn. St. 171; 13 Ga. 190 : filing a bill of discovery in chancery, in some cases, 3 Harr. & J. Md. 452; 3 Dell. Penn. 512; see 8 Miss. 458: detention of a party in the public service, 2 Dail. Penn. 108 ; 4 id. 107 ; see 1 Wall. Jr. C. C. 189: illness of counsel, some times. 1 McLean, C. C. 334; 11 Pet. 226. 5 Harr. Del. 107 ; 4 Cal. 188 ; 4 Iowa, 1-16 ; 19 Ga. 586. See 2 Caines, N. Y. 384; 1 Wall. C. C. 1.
The request must be made in due season. 4 Cranch, 237.• 5 Halst. N. J. 245 ; 1 Browne, Penn. 240 ; 2 Root, Conn. 25, 45 ; 5 B. Monr, Ky. 314. It is addressed to the discretion of the court, 12 Gratt. Va. 564; 2 Dell. Penn, 95 ; 3 id. 305 ; 3 Mo. 123 ; Harp. So. C. 85, 112; 2 Bail. So. C. 576; 1 III. 12; without appeal, 2 Ala. 320 ; 2 Miss. 100 ; 14 id. 451; 6 Ired. No. C. 98. 9 Ark. 108; 16 Penn. St. 412 ; 6 How. 1; 13 id. 54 ; but an improper and unjust abuse of such discretion may be remedied by superior courts, in various ways. See 1 Blackf. Ind. 50, 64; 3 id. 504; 4 Hen.
& M. Va. 157, 180; 4 Pick. Mass. 302; 1 Ga. 213 ; 5 id. 48 ; 16 Miss. 401 ; 9 Mo. 19 ; 3 Tex. 18 ; 18 Ill. 439 ; 7 Cow. N. Y. 369 ; 2 South. N. J. 518. Reference must be made to the statutes and rules of the courts of the various states for special provisions.