(August Term, 1857.)
This Court will not set aside a verdict obtained in a court of law by perjury, and order a new trial, unless the witness, on whose testimony the verdict was given, has been convicted of perjury, or has died since the trial, so that his conviction is rendered impossible.
CAUSE transmitted from the Court of Equity of Cherokee county.
J. W. Woodfin, for the plaintiff.
Baxter, for the defendants.
The bill alleges that the plaintiffs were sued in an action of trover, by the defendant, to the Superior Court of Macon county, for the conversion of certain store-goods, to which the defendant set up title as a purchaser from Morris and Colvert; that the plaintiffs were constables in the county of Cherokee, and having judgments and executions in their hands against the said firm of Morris and Colvert, they levied upon these goods, and having sold them, applied the proceeds to the satisfaction of the executions in their hands; that upon the trial of this suit, one Gideon F. Morris, the father of J. C. Morris, one of the said firm of Morris and Colvert, appeared as a witness in behalf of the plaintiff in that suit, and falsely and corruptly swore that he, acting as the agent of the said J. C. Morris, made a bona fide sale of all the said store-goods to the plaintiff, before the executions in their hands were levied on the same, and before any lien attached on the said goods in favor of these executions; that by means of the said false oath, the said A. J. Patton was enabled to recover, and did recover, from the plaintiffs, a large sum of money, to wit, the sum of $550, with costs of suit, amounting in all to $741; that the said A. J. Patton well knew that the said oath of the said G. F. Morris was false, and that he wilfully and corruptly suborned and procured the witness Morris, thus falsely to testify in his behalf; that plaintiffs had just found out, during the week in which the bill was filed, that they could prove the falsity of the testimony given by the said G. F. Morris on the trial aforesaid; that they are now able to make such proof.
They pray for an injunction, and for such other and further relief as the nature of their case may require, and to the Court may seem meet.
The answers of the defendants denied fully the facts alleged; and at the August Term, 1852, of the Supreme Court, the judgment dissolving the injunction previously obtained, was affirmed. (See 8th Ire. Eq. Rep. 595.)
The bill was continued over as an original bill, and testimony taken in the cause; but as the opinion of the Court proceeds on the want of equity in the plaintiff's bill, it is not deemed necessary to note further the facts stated in the answers or the proofs.
The cause being set down for hearing, was sent to this Court for trial.
The bill, in substance, is to procure a new trial of a cause which had been previously tried between the parties, in the Superior Court of Macon county, upon the ground, that the verdict was obtained on the evidence of one Gideon Morris, who had committed perjury in swearing to the facts he did. The bill charges that the defendants, Patton and Colvert, were guilty of subornation of perjury, in procuring Morris to give such evidence. The power of a court of equity to interfere, by granting a new trial, when the judgment had been obtained, at law, by perjury, is not denied. This doctrine was recognised in this Court, in the case of Peagram v. King, 2 Hawks' Rep. 605. There, the bill charged that the verdict had been obtained by the perjury of one Jenks, who had confessed it on his dying bed, and a short time before his death. The Court granted the relief prayed for; but his Honor, Chief Justice TAYLOR, in pronouncing the opinion of the Court, observes, that "the death of Jenks, the witness, before the complainant knew by what witness his declaration could be shown, rendered a prosecution impossible." This was said in answer to a case cited in the argument by the counsel of the defendant. The case was Torry v. Young, Prec. in Ch. 193, in which the Lord Keeper declared "that the relief must be grounded upon new matter, and not what was tried before. When it consists in swearing only, I will never grant a new trial, unless it appear by deed or writing, or that the witness upon whose testimony the verdict was given, has been convicted of perjury." It is evident from what fell from the Court in Peagram's case, that such would have been their decision, but for the death of Jenks, the perjured witness. The power, so to interfere by a court of equity, in granting a new trial in a case at law, is one capable of great abuse, and has always been exercised with great caution, and ought never to be applied to any case where the party applying has been guilty of any laches. In 2 Vernon's Rep. 240, a judgment was obtained at law upon a forged bond, and the defendant was surprised; in consequence of all the pretended witnesses to the bond being dead, a new trial was granted.
In this case, Morris, the witness, and Patton and Colvert, the alleged suborners, are all alive, so far as the case discloses the fact, and are now all within the jurisdiction of the Superior Court of law of Macon county. The plaintiffs have not prosecuted them for perjury, or for subornation of perjury, nor given any reason for not doing so. Public convenience, as well as private interests, require that there should be an end of litigation. "It results (says the able counsel for the defendant in Peagram's case) from the palpable truth of the position, that a second, or a third, or any number of trials, will not, and cannot, in the nature of things, ensure a final decision absolutely just."
Let the plaintiffs come before the Court, armed with the recorded proof of the perjury alleged to have been committed by Morris, the witness, and his case will then be entitled to the consideration of the Court.
PER CURIAM, Bill dismissed.