party, by affidavit or otherwise. The serving, or giving
notice, of all new orders rests on the party obtaining them. It
would be difficult to state all the circumstances which might
be considered as good cause for a continuance, as they must
necessarily be in a great measure in the discretion of the
judge. The inability of a party, through sickness or
otherwise, to attend; a desire to take further testimony; or the
necessity of giving time for correction of plats produced for
illustration, but found obscure or defective, are among the
usual causes of continuance.
As to the continuing of caveats beyond the time prescribed
by law for their remaining in operation, which the judges of
the land office are authorised to do, " under special
circumstances," by the act of 1797, ch 114, it is certainly not every
common cause of continuance, or rather of postponement
within the year, that ought to be considered among the
special circumstances here intended; especially if those
circumstances are alledged on the part of the caveator, to whom the
time allowed by law ought to be sufficient for the prosecution
of his caveat to a final hearing. The circumstances that
induce the judge to enlarge the period assigned for the
operation of caveats ought be very weighty, for the law has limited
the time, and quite liberally enough, as it is double what was
finally allowed under the former government; and it was
only meant to leave a discretion to be used in extraordinary
cases. The pendency of a bill in chancery, for vacating a
patent obtained by a caveator, and on the validity of which
depended that of his caveat, has been deemed a ground for
continuing the caveat in force until the question of vacation was
decided. The orders of the chancellor, heretofore inserted,
for suspending the operation of the act af November session
1797 on caveats existing at the time of its passage, were
grounded upon a circumstance, indeed, of an extraordinary
nature, to wit, that caveators were misled by the opinions of
counsel relative to the construction of the law;¾
but, which
ought not to serve as a precedent for such extensions; for,
persons are to follow the opinions of their counsel at their
own risk, and the opposite parties are entitled to the benefit
of the law according to its true construction, of which, in the
instance referred to, the chancellor appeared to have no doubt.
Other general grounds of continuance have also been shewn
in the orders of the chancellor upon that subject. In regard
to the revival of caveats, after they have expired for want of
prosecution, it has not been often attempted in the name of
the same persons, and has not been considered admissible,
without the order of the judge of the office; but it is
sometimes done in other names, and the chancellor, upon being
applied to by the register, has declined a positive interference.
|