disseniiente. The first ground of error assigned in this case, is that the court erred in not continuing the cause at the term when the decree was rendered in consequence of the absence of the complainant’s counsel.
It is difficult, if not impossible, to know the precise condition of the record in respect to the continuance supposed to have been applied for. The final decree dismissing the complainant’s bill was rendered at the September term, 1866, of the court. At the June term proceeding, the complainant filed his affidavit in the papers of the cause, stating, among other things, that he could not proceed safely in the case without his counsel, B. II. Smith, Esq., and B. Wilson, Esq. No order seems to have been entered in the case al that term. At the term at which the decree complained oí was rendered, the complainant filed another affidavit the greater portion of which is not intelligible. But the deponent states in the last named affidavit that “ he sincerely believes he cannot proceed and justice to be done to him' without the defence of his learned counsel, who is thoroughly acquainted with the case and the bearings on it o! law and equity, the case being of magnitude and of greal importance and burden for him, and that the deponent haa *535made all possible exertion to have the ease ready, and his other counsel,- Benjamin Wilson, Esq., present, but unavoidably absent.”
I gather from these two affidavits that the counsel for the complainant consisted of B. H. Smith and B. Wilson, and the last of the affidavits states that Mr. Wilson was unavoidably absent, but it does not state that Mr. Smith was absent, but it does seem to appear from another part of the last named affidavit that Mr. Smith was present at least at one time during that term of the court.
It seems, therefore, that the complainant had two counsel, one of whom was present when the decree complained of was rendered. It does not appear from the affidavits of the complainants that he desired or expected any other or further preparation to be made in the case, or that he desired or expected anything to be done before the case was to be submitted. Moreover, it appears from the affidavit of Elesher, one of the counsel for the defendants, that he had submitted the cause to the court on the first day of each term of the court for four or five terms, and that either the complainant or his counsel, at each time of such submission, would call for and take the papers, saying they would examine them and hand them to the court in time for decision, or else would file an affidavit for a continuance; that when they took the papers they would keep.them until after the court adjourned, or until it was too late in the term of the court to examine them.
Under the circumstances of the case I do not think the complainant was entitled to any continuance even if he had no counsel present, and had asked the court to continue the case for that reason, which was not done so far as the record discloses; nor does the record show that any continuance was applied for at the term when the case was determined for any cause.
Decree reversed.