
    13 Dec. 1820.
    THOS D. JONES and al. vs. HORACE GAITHER,
    
      On an appeal from ajudg-merit of the Henderson circuit court.
    
    An afladavit K new tr.&f, causethe.ri at was had ip the of material should state what the witnesses would plain*’why6*!» co: tinuarxe was not ask-edfor'
    
      Crittenden for appellant.
   The Chief Justice

delivered the opinion.

This is an appeal taken by the defendants from a judgment for the plaintiff, in an action of trespass, assault and battery.

The only question is, whether the circuit court erred in refusing to grant a new trial, for the causes stated in the affidavit of one of the defendants. He states in his affidavit, he believed the evidence of Samuel A. Brown and ^^yfrewHlachran. was and is all important on the trial of the caifcg f&t subpoenas had issued for the witnesses; and he w%$Arised into atrial, inasmuch as he was in-tg beliJ^. by bis counsel, that he should have a con-.-'f J'.Jf J .. .. .. , • c ,. t¡nu3ireeafiP|ne cause, owing to the non-attendance ol the

disclosed by the affidavit, are clearly insuffi-to have justified the granting of a new trial. Instead of staling bis belief of the importance of the testimony of (|le absent witnesses, the affiiant should have stated the ^ac,s f0 which they would have deposed, that the court might have been able to judge of their materiality; and he should moreover have stated where the subpoenas were issued for the wiincsses, and whether they had been executed or not, and have given some more satisfactory reason, than he has done, for not having applied for a continuance of the cause.

The judgment must be affirmed with costs and dapia-ges.  