IN EQUITY.

#### Peagram v. King and King.

From Cumberland.

A bill wars íiled lo set aside a veril jot in detinue obtained in Chatham Superior Court, by perjury, anillo olbainanew trial, on the grownil that the means of proving the perjury were discovered too late to obtain retires» at law. These freír, being aíLnued by a Jury here *606this Court decrees a new trial, and directs it to be had in the county where the first trial was had, prohibiting both parties from taking 'advantage of the time which has elapsed since the former trial;

This bill having been retained at a former term, (Jbite 295,) several issues were ordered to be submitted to a Jury, from whose fouling it appeared, that the verdict in the suit mentioned in the bill, was founded on the false testimony of Joseph Jenkr-i, \\ ho was corrupted by a bribe to swear falsely; that Jenks, in his last illness, declared that he had sworn falsely, and that Complainant had no knowledge of this declaration, or of the means of proving the same, before or during the term in which the suit was finally determined. And at this term Rvffin opposed the making of any decree.

The liberality in modern times of Courts of Law in granting new trials, in cases where the verdict is against law' or evidence, or obtained by surprise or fraud, ia such, that there seems to be so little occasion for a resort to equity, that the jurisdiction, if it ever existed, ought now to he excluded altogether. The only proper exception, in reason, seems to be, where the matter forming a good defence, could not, from its nature, be used by the party as a defence upon the trial at law. It is not sufficient that the verdict be unjust, or even that the evidence upon which it was founded was false. Perfect justice cannot bo expected to be administered in any human tribunal, and we must always expect to have wrong decisions, either from the mistakes in judgment of the Judge, the defect of proof offered by the one party, or the falsehood of that produced by the other.

With this danger before us, which must always exist while adjudications are made upon the statements of witnesses, who are liable to be corrupted, a necessity seems to have been felt of adopting the maxim, “ there must be ail end to litigation.” Public convenience, as well as the interest of the parties requires it. It results from the palpable truth of the position, that a second, or a third, or any number of trials will not, and. *607cannot, in the «alare of things, insure a final decision absolutely junt. Lord Mansfield, in Moses v. McFarlane, (Burrows,) carried this notion of doing justice so far an to let money unjustly recovered, be recovered back in an action for money bad and received; but upon the maxim alluded to, that was exploded in Marriott v. Hampton — (7 Term R. 269,) and it has sines been doubted whether equity will relieve in Use case of finding a receipt in full after the trial. — (1 Johns. Ch. Ca. 324.) Hence, at law, though new trials are of common experience, they are not granted where the party has been negligent, or whero there has been no surprise. A new trial ought not tobe granted to give a party an opportunity of impeaching; the credit of a witness, of the production of whom, as a witness, the party had notice. Durtjee v. Bennisim— (4 Johns. Hep. 248.) The rule for granting new trials, to let in new evidence, ought: to be limited according to the nature of the ev idence ; there is none so dangerous as new proofs impeaching a witness : they tend always to perjury, and if true, in almost every case were in the party’s power upon the first trial, for impeaching evidence, from its nature, must generally be notorious.

A new trial ought not to be granted, because the ver - dict had been obtained upon tSie evidence of one witsieso who had been suborned to swear falsely, nor will equity, in such case, grant an injunction. Smith v. Lowry — (Í Johns. Ch. Ca. 320,) and the authorities there cited.

And even in former times, before Courts of Law exercised the jurisdiction to the present extent, ii was declared by the Lord Keeper, in Torry v. Young — (Free, in Ch. 193,) that “ the relief must he grounded upon new matter, and not what was tried before; when it consists ir» swearing only, I will never grant a new trial, unless it appear by deed or writing, cr that the witness upon 'Whose testimony the verdict was given, has been convict e,d of perjury,” Ami in this case the bill was dismissed^ though the l’laiutiíf uncovered after the trial, that the principal witness against him was interested» Ji is th«, *608policy of tbe common law not to give a remedy for a wrong sustained by the perpetration of felony, until the felon be acquitted or convictedj the same policy applies with equal force to perjury. The reason of the rule seems to be, besides the inconvenience of repeated trials, the difficulty of knowing whether, upon another trial, the same or new witnesses, would swear to the whole truth and nothing but the truth ; hence, to induce the Court to interfere, the falsehood of the former testimony must be shewn, not by other witnessess, but by evidence of a higher grade, by writing, or tlie conclusive record of the conviction of the witness.

Equity will not entertain a bill of reviera, upon the ground of a new discovery of cumulative witnesses, or to let in evidence, though newly discovered, to impeach the witnesses on the original hearing. “If such an indulgence were granted,” says Chancellor Kent, “ there would be no end to suits.” Livingston v. Hubbs — (3 Johns. Ch. Ca. 126.) The same reason applies against interfering with judgments at law upon those grounds; and equity ought, at least, to apply the doctrine of its own cases to those at law ; indeed it ought to be stricter, because it is a second application for a new trial, after one has been already applied for at law, or might have been, which is She same thing. There could not be a case in which these principles apply more strongly than in this. The Complainant has already had the extraordinary remedy of certiorari, and two trials at law ; the Defendants here sued first in the County Court, and obtained a verdict and judgment; tbe Complainant did not appeal, but took the ease up by certiorari, and the Defendants again had judgment upon a second verdict. Complainant admits in his hill, that he. heard a rumour of .Tenks's confessions ; why did lie not apply for a continuance ? He came to trial voluntarily, and must abide the consequences. He would not even take the opinion of the Court upon a motion for a new trial, but withdrew it. The action at law must have pended near* *609ly six years ; the bill states the death of the intestate to have been in 1806, and the trial to have been just before the filing of the bill, which was in 1812. Complainant, therefore, knew the witness, and the very purpose for which he was called, and it is a rule both of law and equity, in such case, that a new trial shall not be granted to give another opportunity merely to impeach. — (1 •Johns. Gh. Ca. 432.)

But be the circumstances relied on for a new trial what they may, they must he such as have been newly and wholly discovered since the trial, and such discovery must be made manifestly to appear. The rum our of Jenks’s confessions is admitted; the bill is not supported by affidavit, and from the \ ery nature of the case, the material fact, the period of the discovery, and that it was since the trial, could be known only to the Plaintiff, or at all events was best known to him ; he ought, therefore, to purge himself on that point on oath.

The want of an affidavit shews the danger of allowing this proceeding; and the statement of the bill, that Jenks had often, before and after the death of the intestate in 1806, declared and acknowledged that the gift never was made, and that the Defendant had often made a similar declaration, is inconsistent with the other statement, that he never discovered, until after the trial, such evidence to impeach Jenks; those declarations would both have discredited the witness and barred the Plaintiff’s action.

Gaston, contra

It is contended, tiiat this bill, even if true, presents no case for relief. The simple statement of the case, shews there must be relief somewhere, (1 Madd. 204) and it is here. Tins Court has already intimated a strong opinion that there is ground for re-’ieving, if the bill be true.

A new trial is given in Equity, after a verdict obtained by perjury, if the perjury and means of shewing it *610are. subsequently ascertained. — Sewell v. Freeston — (y Ch. Ca. 65.) Carter v. Sinallridge — {Ibid. 23.) 2 Freeman 178 — S'. C. 1 Eq. Ca. M. 377. Coddrington v, fFebb — (a Vern. 246.) 1 Fern. 177 note — 1 Mad. 25«i —2 Ves. Jim. 134-5. Fair ¡tins v. Cock — (3 Bur. J771.) 1 Fes. 290 — 2 Joims. Ch. Ca. 312 — 3 liesaussnre 269 — 2 I’. FFms. 424 — 7 Crunch. 336 — 2 Johns. Ch. Ca. 512.

We admit, that it must appear that the injury is not the result of Complainant's negligence. No diligence here could have helped the Complainant,” he has done all he could do.

it is admitted, that a new trial' should not be granted for additional evidence of a fact; but for the discovery of a new fact, material and pressing, (3 Johns. Ch. Ca. 124.) Here is a new fact, of which there was no evidence before, an all important fact, decisive of the whole cause.

But it is objected, lhat Complainant has not sworn to the bill. If this objection be a technical one, it should have been made before; if to the substance, it is a fact, though the affidavit does not appear, that he did swear to it, and if necessary, he prays that he may be permitted to swear to it again ; it is not too late, but the important facts are proved independently of his oath. Gas-ton here entered into a minute examination of the testimony, in reply to Ruffin’s observations thereon.

Taylor, Chief-Justice,

delivered the opinion of the Court:

The object of this bill, is to- set aside a verdict at law, obtained by fraud and perjury, and to procure a new trial of the issue, whether a gift was made or not, by li. Pcagram to the Defendants. The general allegations in the bill are, that Joseph Jenks, the witness by whose testimony alone the gift was established, perjured himself in the oath he took, incited by the promise of a bribe from the Defendant Leedy King; and that he <le- *611•. fared in his last illness that he hiul done so, betraying1, at the same time? a deep sentiment of remorse at the recollection of his atrocity. That though a rumour to that effect was floating about, and had actually readied the ears of the Complainant, in consequence of which lie moved for a new trial, yet he was .unable, with the utmost diligence, to ascertain any witness by whom he could prove it, and therefore relinquished the motion ; hut that afterwards, and too late to obtain redress at law, lie discovered witnesses by whom it could be proved, and in consequence lost no time in applying to a Court of Equity for relief. The answer denies the allegations in the bill, butthey have all been affirmed by tbs Jury upon issues submitted to them $ and upon a review and reconsideration of the evidence, I see no reason to be dissatisfied with the verdict. It then results, that the Complainant has been deprived of a valuable property by a judgment at law, procured by fraud, perjury and corruption ,• and the enquiry now is, whether he can be relieved in this Court?

The general doctrine is, that where a verdict has been obtained by fraud, a Court of Equity will interfere, by granting a new trial at law ; but the power being one which may be abused to the purposes of injustice, has always been exercised with extreme caution ¿ and never extended to any case where the party applying lias been guilty of any laches, and might have made use of the evidence at law, lest the Court should thereby encourage, negligence or minister to the litigious passions of men. But where a judgment is obtained at law1 upon a forged bond, and the Defendant was surprized in consequence of all (lie pretended witnesses to the bond being dead, a ;T-w trial was granted.- — (2 Vern. 240.)

It is in general true, both at Law and in Eqgjjty, that new' trial will not be granted on the ground of newly discovered evidence, when it goes merely to impeach the • ciUiinonv of n witness at a former «rial, nor to let in *612cumulative evidence as to matter which was principally controverted at the former trial; but that is very differ- „ 7 J ent from newiy discovered evidence which goes utterly j.Q d08tr0y tiie former testimony and cut it up by th® root, by shewing that it was founded in perjury. Accordingly, both Courts furnish instances of a new trial-being granted for the latter cause.

A new trial ivas granted, upon the ground that the testimony was a fiction, supported by perjury, which the Defendant could not be prepared to answer; and that circumstances liad been discovered, since the trial, to detect the iniquity. — (3 Burr. 1772.) And in a Court of Equity, if new evidence is discovered which could not possibly be made use of in the first trial, the Court will interfere — (1 Ch. Cas. 23.) No evidence could have been given of the dying declarations of Jenks, wrung from him in an agony of remorse, when he had no motive to misrepresent .; for the Complainant shews, (as far as sue!» a fact can be affirmatively established,) that he knew not by whom to prove it until after the trial, when Peter Jlvent gave him the information. It is admitted (Prec. in Chan. 193,) that if a witness on whose testimony a verdict has been given, was convicted of perjury, a new trial may be granted. The death of Jenks, before the Complainant knew by what witness his declaration could be shewn, rendered a prosecution impossible, and brings this case within the reason of the decision.

The Courts of Chancery, in this State, are invested with all the powers and authorities rightfully incident to such Courts, and may therefore direct a new trial at law in the county where the first trial was had. The direction in the act óf Assembly relative to the trial of issues s$ fact, is confined to such as arise in the course of a cause then on trial; as, in this case, the facts which the Court desired to be found, before they could judge of the equity arbú.;; from them, have been established *613by a Jury here. The conclusion of law, which the Court pronounces, is, that a new trial be had in the Court whence the case at law came; and, upon that trial, the parties on either side, will be at liberty to go into any legal evidence which tends to establish or destroy the gift. But the delays which have occurred in the cause, arising chiefly from the organization of the Courts of Equity, render it fit that neither party should avail himself of the time which has elapsed since the judgment below ; and this must be part of the decree.