PECK, C. J.
A criminal, as well as a civil suit, may be discontinued. A. discontinuance is defined to be a gap or chasm in the proceeding after the suit is pending. — Hawk Pleas of the Crown, vol. 2, 416; Chitty’s Crim. Law, 346; Drinkard v. The State, 20 Ala. 9. In that ease, the defendant below was indicted for gaming. Two writs of capias Were issued against Mm, which were returned “not found.” Thereupon, on motion of the solicitor, with the leave of the court, the case' was withdrawn Rom the docket, with leave to reinstate the case, if necessary. No further step was taken in the cause for several terms, when, upon order of the solicitor, a capias was issued and the defendant was arrested. At the trial, the defendant moved the court to strike the cause fi’om the docket, on the ground that it had been discontinued. The motion was overruled, and the defendant excepted. This court held that the cause was discontinued.
In the case of Ex parte Rivers, (40 Ala. 712,) the petitioner was indicted in the circuit court of Barbour county, for an assault with intent to murder. After the cause had been continued several times, upon the ground that the presiding judge had been of counsel; and ón that ground, on motion of the prosecuting attorney, the court ordered the cause to be transferred to the circuit court of Macon county. A transcript of the proceedings, as in change of venue, together with the papers of the cause, were forwarded to the clerk of the circuit court of Macon county. The defendant objected to the ruling of the court, transferring the cause R'om Barbour to Macon county. His objection was oyerruled, and he excepted. After said order was made, the cause disappeared from the docket of the circuit court of Barbour county for several terms of said court; when the solicitor moved the court of said county to vacate the order transferring said cause to Macon county. To this defendant objected; his objection was overruled, [681]*681and he excepted. The court vacated said order of transfer, and directed said cause to be continued until the next term, of said court. To all this defendant objected; his objection was overruled, and he excepted.
At the next term of said court, the defendant moved the court to strike said cause from the docket, for the reason that the prosecution had been discontinued. The court overruled his motion, and he excepted, and on defendant’s application the cause was continued. Thereupon, defendant made an application to this court for a rule on the judge of said circuit court to require him to show cause why a mandamus should not issue, commanding him to strike said cause from the docket. This court held that the cause was discontinued, and the defendant’s application was granted.
In this case, the petitioner, at the fall term of the circuit court of Cherokee county, 1865, was indicted for the crime of murder. At the fall term of said court, 1867, on petitioner’s application, the venue was changed to the circuit court of Baine county. Afterwards, on the 12th day of October of the same year, a transcript of the proceedings, with the papers in the case, was forwarded to the clerk of the circuit court of Baine county, and the cause was entered upon the State docket of said county. After-wards, at the fall term of the circuit court of Baine county, 1867, the petitioner states in his petition, he was put upon his trial on said indictment, and after the trial had progressed for some time, the court, for reasons satisfactory to .the presiding judge, continued the case to the next term of said court. After this, on the 3d day of November, 1867, the constitutional convention of this State passed an ordinance, entitled “An ordinance to abolish the new county, called the county of Baine, formed by the last general assembly of this State.” Said ordinance is as follows :
“ Be it ordained by the people of the State of Alabama in convention assembled, That the new county, called the county of Baine, formed out of portions of the counties of Cherokee, DeKalb, Marshall, Blount, St. Clair and Cal[682]*682houu, in this State, by an act of the general assembly of this State, purporting to have been approved on the seventh day of December, 1866, and numbered 92 among the published acts of said general assembly, be, and the same is hereby abolished, and the territory and jurisdiction of said new county of Baine is restored to the counties out of which it was formed, as the Same existed before the formation of said new county.”
Afterwards, on the 1st day of December, 1868, by an act of the general assembly, said ordinance was repealed, and in Said act it is provided and declared that said county of Baine shall be known as the county of Etowah. By said act the territory of said county is somewhat, but not materially changed. Notwithstanding the said ordinance abolishing the said county of Baine, circuit courts appear to have been held in said county up to the passage of said act of the 1st of December, 1868, the last court being held in the fall of said year, 1868. The transcript of the proceedings had in said cause is made a part of petitioner’s petition, which contains the following entry, to-wit: “ Baine County — Fall Term, 1868. State v. Wm. M. Hall. Came the State by her solicitor, J. L. Cunningham, and the defendant in person, and the court having been of counsel, this cause stands continued.” The next entry in said transcript is as follows : “ Spring Term, 1869 — Etowah County. State v. Wm. M. Hall. The court having been of counsel, cause stands continued by operation of law.” Similar entries appear in said transcript up to the spring term, 1871.
At the fall term, 1871, the court Was held by the Hon. Wm. S. Mudd, one of the judges of the circuit court of this State. At this term of the said court, the said transcript states, petitioner, said Wm. M. Hall, came in his own person, and by counsel, and moved the court to strike said cause from the docket, and that he be discharged.
Several grounds are stated in the motion why the same should be granted, all, however, amounting to this, that said ordinance abolishing said county of Baine was a discontinuance 'of said prosecution. The transcript states [683]*683that said motion was heard upon the statutes, said ordinance, and military orders, in reference to said counties of Baine and Etowah, and upon proof that the judicial and other officers of said county of Baine had, in fact, continued to perform their duties and functions up to the repeal of the said ordinance of the convention of 1867, by which the county of Baine was abolished.
What said military orders referred to were, is not stated, and we do not judicially know what they were. The said motion was overruled, and petitioner excepted. The cause was then continued by consent, without prejudice, &c.
On the authority of the cases of Drinkard v. The State, and Ex parte Rivers, supra, it seems to us, the said ordinance abolishing said county of Baine, was a discontinuance of said prosecution. From the abolition of said county until the same was re-established, with the name of Etowah, a period of nearly twelve months elapsed, during which period the .proceedings in said cause were interrupted, and no step could legally be taken in the same. This was a gap or chasm in the proceedings occasioned by the plaintiff, the State, and was a discontinuance. But the continued appearance of the petitioner, and the continuance of said cause, as stated, without objection on his part, was a waiver, of said discontinuance.
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PECK, C. J.
A criminal, as well as a civil suit, may be discontinued. A. discontinuance is defined to be a gap or chasm in the proceeding after the suit is pending. — Hawk Pleas of the Crown, vol. 2, 416; Chitty’s Crim. Law, 346; Drinkard v. The State, 20 Ala. 9. In that ease, the defendant below was indicted for gaming. Two writs of capias Were issued against Mm, which were returned “not found.” Thereupon, on motion of the solicitor, with the leave of the court, the case' was withdrawn Rom the docket, with leave to reinstate the case, if necessary. No further step was taken in the cause for several terms, when, upon order of the solicitor, a capias was issued and the defendant was arrested. At the trial, the defendant moved the court to strike the cause fi’om the docket, on the ground that it had been discontinued. The motion was overruled, and the defendant excepted. This court held that the cause was discontinued.
In the case of Ex parte Rivers, (40 Ala. 712,) the petitioner was indicted in the circuit court of Barbour county, for an assault with intent to murder. After the cause had been continued several times, upon the ground that the presiding judge had been of counsel; and ón that ground, on motion of the prosecuting attorney, the court ordered the cause to be transferred to the circuit court of Macon county. A transcript of the proceedings, as in change of venue, together with the papers of the cause, were forwarded to the clerk of the circuit court of Macon county. The defendant objected to the ruling of the court, transferring the cause R'om Barbour to Macon county. His objection was oyerruled, and he excepted. After said order was made, the cause disappeared from the docket of the circuit court of Barbour county for several terms of said court; when the solicitor moved the court of said county to vacate the order transferring said cause to Macon county. To this defendant objected; his objection was overruled, [681]*681and he excepted. The court vacated said order of transfer, and directed said cause to be continued until the next term, of said court. To all this defendant objected; his objection was overruled, and he excepted.
At the next term of said court, the defendant moved the court to strike said cause from the docket, for the reason that the prosecution had been discontinued. The court overruled his motion, and he excepted, and on defendant’s application the cause was continued. Thereupon, defendant made an application to this court for a rule on the judge of said circuit court to require him to show cause why a mandamus should not issue, commanding him to strike said cause from the docket. This court held that the cause was discontinued, and the defendant’s application was granted.
In this case, the petitioner, at the fall term of the circuit court of Cherokee county, 1865, was indicted for the crime of murder. At the fall term of said court, 1867, on petitioner’s application, the venue was changed to the circuit court of Baine county. Afterwards, on the 12th day of October of the same year, a transcript of the proceedings, with the papers in the case, was forwarded to the clerk of the circuit court of Baine county, and the cause was entered upon the State docket of said county. After-wards, at the fall term of the circuit court of Baine county, 1867, the petitioner states in his petition, he was put upon his trial on said indictment, and after the trial had progressed for some time, the court, for reasons satisfactory to .the presiding judge, continued the case to the next term of said court. After this, on the 3d day of November, 1867, the constitutional convention of this State passed an ordinance, entitled “An ordinance to abolish the new county, called the county of Baine, formed by the last general assembly of this State.” Said ordinance is as follows :
“ Be it ordained by the people of the State of Alabama in convention assembled, That the new county, called the county of Baine, formed out of portions of the counties of Cherokee, DeKalb, Marshall, Blount, St. Clair and Cal[682]*682houu, in this State, by an act of the general assembly of this State, purporting to have been approved on the seventh day of December, 1866, and numbered 92 among the published acts of said general assembly, be, and the same is hereby abolished, and the territory and jurisdiction of said new county of Baine is restored to the counties out of which it was formed, as the Same existed before the formation of said new county.”
Afterwards, on the 1st day of December, 1868, by an act of the general assembly, said ordinance was repealed, and in Said act it is provided and declared that said county of Baine shall be known as the county of Etowah. By said act the territory of said county is somewhat, but not materially changed. Notwithstanding the said ordinance abolishing the said county of Baine, circuit courts appear to have been held in said county up to the passage of said act of the 1st of December, 1868, the last court being held in the fall of said year, 1868. The transcript of the proceedings had in said cause is made a part of petitioner’s petition, which contains the following entry, to-wit: “ Baine County — Fall Term, 1868. State v. Wm. M. Hall. Came the State by her solicitor, J. L. Cunningham, and the defendant in person, and the court having been of counsel, this cause stands continued.” The next entry in said transcript is as follows : “ Spring Term, 1869 — Etowah County. State v. Wm. M. Hall. The court having been of counsel, cause stands continued by operation of law.” Similar entries appear in said transcript up to the spring term, 1871.
At the fall term, 1871, the court Was held by the Hon. Wm. S. Mudd, one of the judges of the circuit court of this State. At this term of the said court, the said transcript states, petitioner, said Wm. M. Hall, came in his own person, and by counsel, and moved the court to strike said cause from the docket, and that he be discharged.
Several grounds are stated in the motion why the same should be granted, all, however, amounting to this, that said ordinance abolishing said county of Baine was a discontinuance 'of said prosecution. The transcript states [683]*683that said motion was heard upon the statutes, said ordinance, and military orders, in reference to said counties of Baine and Etowah, and upon proof that the judicial and other officers of said county of Baine had, in fact, continued to perform their duties and functions up to the repeal of the said ordinance of the convention of 1867, by which the county of Baine was abolished.
What said military orders referred to were, is not stated, and we do not judicially know what they were. The said motion was overruled, and petitioner excepted. The cause was then continued by consent, without prejudice, &c.
On the authority of the cases of Drinkard v. The State, and Ex parte Rivers, supra, it seems to us, the said ordinance abolishing said county of Baine, was a discontinuance of said prosecution. From the abolition of said county until the same was re-established, with the name of Etowah, a period of nearly twelve months elapsed, during which period the .proceedings in said cause were interrupted, and no step could legally be taken in the same. This was a gap or chasm in the proceedings occasioned by the plaintiff, the State, and was a discontinuance. But the continued appearance of the petitioner, and the continuance of said cause, as stated, without objection on his part, was a waiver, of said discontinuance. It is said in Blackstone’s Commentaries, vol. 3, p. 296, that “where the plaintiff leaves a chasm in the proceedings of his cause as by not continuing the process regularly from day to day, and from time to time, as he ought to do, the suit is discontinued, and the defendant is no longer bound to attend, but the plaintiff must begin again.” .The clear inference from this is, if the defendant does attend, and permits the cause to proceed without objection, the error or irregularity is waived, and he thereby loses the benefit of it. In practice, it is required of every one to take advantage of his rights at the proper time, and neglecting to do so, will be considered a waiver. — Bouv. Law Dic. vol. 2, p. 648. This rule of practice we think as applicable to a criminal as in a civil proceeding.
[684]*684If it be said the petitioner was a prisoner, and appearance was not a matter of option or choice with him, it is a sufficient answer to say, the transcript shows he was a prisoner enlarged on bail, and was as free to have made his motion to strike the cause from the docket eighteen months or two years before as at the time it was made.
It is argued by petitioner’s counsel that Etowah county is not the county in which the indictment was found, nor the county to which the venue was changed; that the venue was changed to Baine county, and that Etowah is, essentially, another and different county ; that the abolition of Baine county was a discontinuance of the prosecution ; that the cause was improperly, and without authority of law, transferred to the docket of the circuit court of Etowah county, and, therefore, his motion to strike the same from the docket of Etowah county should have been sustained.
This argument may be apparently plausible, but it is apparently only. The act to repeal' the ordinance abolishing the county of Baine did not create a new county, but, in reality, merely re-established the county of Baine, with another name. The county of Etowah embraces, substantially, the same territory embraced in the county of Baine, and the courts were to be held at the same place. The petitioner having neglected to make his motion in proper time, and permitted the cause to proceed from term to term, for some three years, the discontinuance must be held to be waived. For these reasons, no error was, committed in overruling the petitioner’s motion to strike the said cause from the docket; consequently, the application for a mandamus must be denied. The petitioner will pay the costs of said application.