
    *Hoomes v. Kuhn.
    [April, 1792.]
    Equity Jurisdiction — Relief—Absence of Witnesses— Negligence. — If the defendant has been negligent in his preparations for the trial of the cause, a court of equity will not relieve against the verdict on account of the absence of witnesses, who cdn only prove, in substance, the same things which other witnesses can.
    Same — Same—Same—Same.—if the defendant only asks one witness to attend, and sends a subprcna,
    . 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 that he can reach it in time, this is gross negligence ; especially jf he does not com-nrunicate tho.se circumstances to Ins counsel, nor make any otter preparations for the trial.
    Same — Same—Same—Same.—Ana in such case, equity will not interfere, if the judge who tried the cause, and knew what passed at the trial, twice refused it, upon the same representation.
    . Kuhn suspecting that a slave belonging to Hoomes had robbed his store, at the Bowling Green, whipt him very severely. Hoomes, who lived about half a mile from the place, upon hearing of the whipping, went to the Bowling Green; and, after a short alteration with Kuhn, struck him : the latter returned the blow, and a fight ensued, in which Kuhn was much worsted. Kuhn brought an action of assault and battery against Hoomes, in the district court of Fredericksburg; and prosecuted the slave for the supposed theft, but he was acquitted. Hoomes brought an action against Kuhn for whipping the slave, and recovered ¿£17.* At the first trial of Kuhn’s suit against Hoomes, Elliot and Roy were ex-amied as witnesses for Hoomes; but, the jury disagreeing, no' verdict was rendered. At a succeeding term of the court, Hoomes, who had been elected a member to a convention of the clergy at Richmond, on his way thither met with Elliot at Hanover courthouse, and asked him to attend the trial, which he promised to do, but was prevented by sickness. As'Roy, , who was a neighbour to Hoomes, had gone upon a visit to Essex, Hoomes sent a servant with a subpoena, requesting him, by letter, to attend; but the servant did not reach him until the day of appearance mentioned in the subpoena; and he thinking it would be too late, did *'not go, although the cause was not tried, until three days afterwards. No other witnesses were summoned by Hoomes; but Elliot was summoned by Kuhn, who sent a carriage1 to the Bowling Green to fetch him, but he was too unwell to attend, and wrote a letter to that effect by the return of the carriage, in which he says, “Mr. Woolfolk and Weathers were present at the fight as well as I was, and may relate what happened as well as I can.” The counsel of Hoomes made no objection to going into the trial; but he had not apprized them of his going to Richmond, his application to Elliot, and his sending the subpoena to Roj’: nor had he instructed them to 'move for a continuance. The jury found ^100 damages for the plaintiff; and. Hoomes’s counsel twice moved for a new trial, which the judge denied, but afterwards recommended it to the plaintiff to consent, if Hoomes would pay all the costs of the suit to that time: Kuhn refused to do so; and judgment was entered according to the verdict.
    Upon which, Hoomes filed a bill in the high court of chancery, stating the foregoing circumstances, and that a new witness was introduced, who, not having been present at the transaction aforesaid, knew little or nothing of it; but who swore, that, some considerable time before the fight, the complainant had refused, on application, to do any thing with the same negro, when under a suspicion of having stolen a guinea and certificate: which charge the complainant, if he had had notice of it, could have disproved, although it was irregular to introduce it into the cause.- The bill did not allege that the plaintiff could not have proved, by other witnesses, the same things which Elliot and Roy would have proved, if they had attended.
    The answer insisted that the verdict was just: That the counsel of Hoomes had voluntarily gone into the trial, without any attempt to continue the cause: That the defendant had always believed Elliot to be a material witness for him; and, under that belief, had endeavoured to have him present at the trial: That Roy was not present at the assault: and that the testimony complained of in the bill, was not only assented to, but solicited by the complainant’s counsel.
    *Several depositions were taken in the court of chancery. Elliot proved the whipping of the slave, and the assault upon Kuhn, whom he represented as defending himself with alacrity. Roy, also, proved the whipping of the slave, in which he himself assisted by order of Kuhn, in whose service he then was; and that Hoomes had not been previously applied to upon the subject. Several other witnesses proved.in effect, the same things mentioned by those two. Brooke, who was Kuhn’s counsel in the district court, stated that the counsel for Hoomes went to trial without discovering any inclination to postpone, or continue the cause: That the testimony complained of in the bill, was given with their consent, to the jury; and that, he, (Brooke,) from a conviction of the utility of Elliot’s testimony; upon the first trial, for his own client, had , advised Kuhn to summon him to the second. One of the counsel for Hoomes, in the district court, was likewise examined as to what passed at the trials, but not as to the circumstances related by Brooke: who was not contradicted by any witness.
    The court of chancery made the following decree, “The, court is of opinion, that a motion for a new trial of the issue in the action at common law, between the parties, 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; and therefore doth adjudge, order and decree that the bill of the plaintiff, praying an injunction to the judgment on the said verdict, be dismissed; and that he pay to the defendant the costs expended by him in his defence.”
    Hoomes appealed to the court of appeals.
    The counsel for the appellant contended, That Elliot and Roy were material witnesses for Hoomes; who had taken proper steps to procure their testimony, and was disappointed by the sickness of one, and the difficulty of finding the other.
    *On the other side, it was said, by the appellee’s counsel, that a sufficient excuse was not offered by the appellant ; who had not only failed to take proper steps to procure the attendance of his witnesses, but had shewn general indifference and carelessness with respect to the trial. That the testimony of . Elliot and Roy, which, in substance, was the same with that of other witnesses, could, at the most, have gone to mitigate damages; but that the court never interferes with the verdict in an action of tort, unless the sum found is excessive; which could not be pretended in the present cd.se. That the appellant had less reason to complain of this, as he had brought a cross suit, and recovered compensation for the personal affront received by whipping the slave, without his knowledge, and could not require further allowance, for the same thing, under pretence of mitigating the damages. That the motion for a new trial, upon the grounds now contended for, had been twice overruled by the judge of the district court; and that his judgment ought to be conclusive.
    Cur. adv. vult.
    
      
      Equity Jurisdiction — Relief—Absence of Witnesses— Negligence. — The principal case is distinguished from Foushee v. Lea, 4 Call 286.
      Por a full discussion of this subject, see mono-graphic note 'on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425 ; and monographic note on "Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.
      See this case reported in Wythe, 136.
    
   LYONS, Judge,

delivered the resolution of the court, as follows:

The court is of opinion, that this was not a case for relief in equity, upon any of the principles which have hitherto regulated new trials.

If Elliot and Roy had been his only witnesses, proper steps were not taken, by appellant, to procure their attendance. For the first was not summoned by him at all, and the subpoena for the other, instead of being delivered in due season to the sheriff, was sent, by a servant, to the witness himself, so late that it did not reach him until the day of appearance, and then at such a distance from the place of trial, that there was not the least probability that he could reach it in time.

The laches of the appellant, however, does not rest here; for he made no other preparation for the trial; but came on *to Richmond, without apprizing his counsel of what he had done with regard to those witnesses, and left the cause to its fate.

All this betrayed such gross negligence, that were the witnesses more material than they appear to be, there would be no ground for a court of equity to relieve the appellant against the consequences of his own carelessness and inattention.

Those witnesses, however, were not so important as the appellant’s counsel represents. For they prove the assault and the transactions which led to it much in the same manner that several other persons do; and all that the counsel contends for is, that some circumstances (of no great consequence) which they relate, might, possibly, have lessened the damages.

But, independent of the fact that the appellant, which the bill does not deny, might, in effect, have proved the same things by other witnesses, the damages were not excessive; and the court does not incline to weigh the quantum with scrupulous nicety, as the trial was fair, and the appellant had brought a cross action, upon the same testimony, for whipping the slave, and recovered vindictive damages, there being no actual loss of service sustained.

Besides no motion was made for a .continuance of the cause, but the parties voluntarily went to'trial without any surprize; for the testimony complained of in the bill was consented to, and even solicited by the appellant’s counsel.

After which, it would be an indulgence never before allowed, if a new trial were to be granted by a court of equity, when it had been twice refused by the judge who tried the cause; who was acquainted with all, that passed at the trial; and who decided, no doubt, upon the same representation, as the complainant went to Fredericksburg, and probably furnished the same excuses.

But it was said that the appellant was absent when the cause was called for trial; and therefore could not move for a continuance.

*His absence, however, was voluntary ; and his whole conduct, with respect to preparation for the trial, shewed the utmost unconcern about it.

If, under such circumstances, equity were to interfere, suits would be perpetual, and litigation would never be at an end.

The decree is to be affirmed.  