
    Jackson, ex dem. Abel, against Miller.
    The «u-win not order referred *a circuit judge for settlement as to the evidence, where It has once been settled cot Jinglo the practice of the court; unless there be e v6 • rj- plain mistake-
    
      j A. Viele, for the defendant,
    moved that a case made for the purpose of moving for a new trial in this cause, an^ had been settled by the circuit judge who tried the cause, be again referred to him for re-settlement. The . . motion was founded on affidavits oi the defendant’s coun-sej an(} 0f witnesses sworn at the trial, that, according to ’ . . ° their recollection, some of the testimony given at the trial liad been mistaken by the judge.
    
      E, Cowen, contra,
    produced affidavits of the plaintiff’s counsel, that, according to their recollection, the evidence was correctly stated by the judge.
   Curia.

Where the testimony in a case has been settled by a circuit judge, according to the practice of this court, we will not examine its accuracy on affidavit; and order it referred for correction, unless there be a very plain mistake. He hears the witnesses, and takes minutes of their testimony, which he has before him; and is, therefore, more competent to settle the testimony than this court. The motion must be denied.

Motion denied.  