Opinion of the Court by
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.