dissenting. In dissenting from the opinion delivered in this case by their honors, Judge Irvin and Judge Miller, I shall, as a member of this court, briefly state the grounds of dissent, which are the same that influenced the decision of the district court, on the point which has been decided by this court to be error.
It has already been stated that there were three errors assigned in this case. Two of these this court has not deemed it necessary to decide upon. The other is, that the district court erred in overruling the motion to continue the trial of the cause, made on behalf of Doty, the defendant, on the ground that he was at the time a delegate in congress from this Territory, and then absent at Washington, in his attendance as such upon congress, then in session.
In considering this ground of error, I shall notice those points which present themselves on the face of the assignment. First. Can the decision of a court upon a motion for a continuance, addressed to the discretion of the court, to be exercised upon a review of all the circumstances of the case, be error, and reversable in this court ? The weight of authorities certainly answers this question in the negative, and the opinion of this court in this case intimates as much. Is the plaintiff in error entitled to the privilege said to be set up by him in this case ? It is admitted that a delegate is entitled to the same privileges as a member of congress, as to arrest, under the 6th section of the 1st article of the constitution of the United States ; and, further, if the plaintiff in error had set up the privilege at a proper time, and in a proper manner, the district court should have allowed it. It appears, from the records in this case, that the suit was com*90menced in the district court, declaration filed, summons issued and personal service on Doty made on the 25th day of June, 1839 ; that Doty, the defendant in the suit, appeared by his attorney at the September term of the district court thereafter, and pleaded the general issue. The said Doty was then duly notified and in court from 25th June, 1839, to 22d April, 1840; and between those dates, at the September term, 1839, appeared and pleaded by his attorney.
It does not appear from the same record that any diligence was used, by issuing subpoenas for witnesses, or in any other way, to prepare the case for trial. After plea and issne from the September term to the first Monday of December following (the day of meeting of congress), Doty had free intercourse with his counsel and time to prepare for defense. It is true that he was absent in congress at the April term, 1840, and the statement in the affidavit for continuance, “that on account of such absence at that time his attorneys could not learn the names of his witnesses and have them cited to attend the court at the trial,” does not answer fully the facts in the record. Although it is true that at the time referred to he was absent, and for that reason his attorneys could not then procure from him the names of his witnesses, his negligence in the interviú between notice and the meeting of congress, during which interval he had employed counsel, and they had pleaded for him and made up am issue, is not accounted for, and he cannot set up constructively his privilege at so late a period to excuse such palpable negligence. It would be permitting him to neglect at the proper time that which he was bound by law to do, and postpone his preparation until a period should arrive when he might claim his privilege, and thereby take advantage of his own wrong to the prejudice of the person prosecuting a claim against him.
On the last point, has Doty set up at all in proper manner his privilege % He has not. In the affidavit for continuance one of his attorneys assigns as a reason why *91they could not learn the names of his witnesses, “that he was at the time of making the affidavit absent in attendance in congress as delegate.” It may be collected from this that he was a delegate and absent, and for that reason his attorneys could not learn the names of his witnesses at that time. Is this setting up and claiming a privilege, as contemplated in the Pennsylvania case referred to, or in any other adjudicated case, in point ? Certainly not. It will not be contended that he could not, if he had a privilege, waive it. The court is not bound to set it up for him. He should have done it at a proper time and in a proper manner, so that the plaintiff might have traversed the fact of his being in a situation to obtain the privilege; and this could be done in two ways, first, by denying that he was delegate, and second, if a delegate, by denying he was then on duty in congress, or employed in going to or returning from congress, and if either point had been found for the plaintiff, the claim of privilege would and properly should have been overruled. These are the reasons which influence me to dissent from the opinion of the court in this case.