¶1THE bill in this cause, brought for another trial’of the issue in an action of assault and battery, was dismissed, the 28'da.y of October, 1791, the opinion of the court being, that, a motion for the new trial having been rejected by the judge before whom the verdict was found, and no matters now appearing to this court, which, if they had been known to that judge, ought to have wrought a change in his sentiments, in such a case the interposition of this court would be improper.
¶2This decree of dismission, iron which the plaintiff appealed,
¶3[*This case, reported in 4 Call., 274, decides:
“ If the defendant has been negligent in his preparations for the trial of the' canse, a court of equity will not relieve against the verdict on account of absence, of witnesses, who can only prove, in substance, the same things which! other witnesses can.
“ If the defendant only asks one witness to attend, and sends a subpoena, by a servant, to another, which reaches him on the day of appearance, at so great a distance from the court where the cause is depending, that there is no probability thai he can reach it in time, this is gross negligence; especially if he does not communicate those circumstances to his counsel, nor make any other prej arations for the trial.
“ And in such case, equity will not interfere, if the judge who tried t hp cause; and knew what passed at the trial twice refused it, upon the same representation.” — Ed.]