Where counsel for plaintiff in error was detained at home in another city from that where this court sits, at the time the case was called, on account of serious sickness in his family, and communicated that fact to the court, but the communication failed to reach it in time, and the case was dismissed for want of prosecution, amotion to reinstate it on that ground would be granted, if there were anything in tne record which could benefit the party prosecuting the writ of error. But in the present case, the exception is to the refusal of a motion for new trial made after the close of the term of the trial, on the ground of newly discovered evidence to prove an alibi; and it appears that the testimony was neither in fact newly discovered nor was any diligence used in obtaining it. This courqi will therefore not do a vain thing by reinstating the case.
Motion to re-instate denied.