| U.S. Circuit Court for the District of Maine | May 15, 1840
I am far from desiring, that the counsel on both sides should not be allowed the fullest opportunity of being heard upon the present petition. But as all the papers were sent to me some time since, without any intimation, that an argument was to be made, I supposed the papers were submitted for the consideration of the court for their decision without argument, and I accordingly devoted my attention to the examination of the subject. As there are intrinsic difficulties in the case, and the application stands upon very unusual circumstances, and the counsel seem desirous of knowing those points, to which the court would especially wish them to turn their attention at the argument, I will briefly suggest such considerations, as have occurred to my mind upon the subject.
Rehearings rest in the sound discretion of the court; and where they are petitioned for upon the ground of newly discovered evidence, they are mainly governed by the same considerations, as apply to cases, where leave is asked, after the publication of testimony, and before the hearing, to file a supplemental bill, in order to bring such new evidence before the court; or where, after a decree, leave is asked to file a bill of review, or a bill in the nature of a bill of review, upon the like ground of newly discovered evidence. This subject has been a good deal discussed in this court; and I am not aware, that there are any important authorities, bearing on it, which wore not brought before the court and examined in the case of Dexter v. Arnold [Case No. 3,856).
There are several leading points, which must necessarily come before the court whenever the argument upon the present petition is heard. (1.) Whether the nature of the evidence proposed to be offered, viz. that of parol confessions, asserted to have been made since the hearing and decree, is such as properly to justify the court in granting a rehearing, supposing it to be full and explicit to the purpose. (2.) Whether, in fact, the evidence now offered of the supposed confessions, is of such a character, as is, or ought to be satisfactory, as proof, to contradict the solemn declarations contained in the answer of the plaintiff to the cross bill, to the very point on which those confessions hinge. (3.) Whether, if admitted, they could be of any just avail in the cause; or would do more than justify the court in rescinding the compromise, supposed to have been made
The second point is one of no small embarrassment and difficulty, upon the actual posture of the confessions, offered as proof by the petition. These confessions, at least so far as the testimony of Mr. Preble goes, are susceptible of an interpretation favorable to the plaintiff, or, at least, consistent with his good faith and honesty, to the extent of delivering him from the imputation of wanton and deliberate perjury. The affidavit of the defendant, Todd, as to the confessions ■of the plaintiff, cannot certainly be admitted ■as evidence in such a cause as this;, for in equity no defendant can be a witness to testify in his own favor to a matter, not called for by the plaintiff in his bill. The case, therefore, presented upon this application, on this point, is the affidavit of one witness, as to the supposed confessions of the plaintiff, ■and the testimony of the plaintiff, directly ■and positively denying the material facts of the confessions, not merely in his affidavit, but in the most explicit and deliberate manner in his answer to the cross bill. If, therefore, we order a rehearing upon the testimony thus adduced, we must come to the conclusion, in granting this application, that the plaintiff has been guilty of gross and deliberate perjury in his answer to the cross bill, ■as well as in his affidavit; and that he is no t worthy of any, even the slightest credit. Indeed, it might well be said, that, under such circumstances, he was not falsus in uno. but falsus in omnibus. Now, I need scarcely say, that a court of equity, in granting a rehearing in its discretion would be slow to come to a conclusion of this sort, unless it was forced upon it by the most irresistible evidence, and that, in its nature and character, it was of the highest credit, and the farthest removed from the chance or possibility of mistake. Certainly, it cannot be said, that parol evidence of mere confessions is entitled to such a high distinction. It has been well said, that it is the easiest to be manufactured, and the most difficult to be repelled or refuted, of any species of evidence. And although, in the present case, the character of the gentleman, whose affidavit has been given, places his own testimony beyond any suspicion u;ith regard to his belief in its entire accuracy; yet it is to be recollected, that no portion of human testimony is more open to just doubts, than confessions arising from the frailty of human memory, and the mistakes, which may constantly occur in understanding the exact purport and meaning of the language, used by parties in conversation. judges, therefore, in acting upon the proof of confessions, are not at liberty to draw inferences from their own personal knowledge of individuals; but they must deal with such evidence, as if the parties were unknown, and it were to be judged of upon its own intrinsic force, connected with the other circumstances of the case. But, when such confessions are to establish the solemn charge of deliberate perjury by any party, I am sure, that the court is called upon to exercise the most scrupulous caution, before it arrives at the conclusion, that mere confessions establish such criminality. These, however, will properly occur as matters of observation at the argument; and they are now suggested, because they must be met and considered, whenever the petition comes on for a final hearing.
But the other point is a matter of great practical importance, and is that, upon which, I confess, I have a strong impression. It is, whether a court of equity ought ever to open a cause for a rehearing and to admit new evidence, founded upon parol confessions made subsequently to the time of the original decree. I have searched the authorities to find some ease of this sort; but I have not found any. The counsel have frankly admitted, that in their own researches they have discovered none. My judgment is, that no such case does exist. And this universal silence in a case, which must frequently have occurred in practice, affords an exceedingly strong presumption, that it has not been deemed admissible as a ground for a rehearing.
Upon these suggestions the counsel submitted the case to the court without farther argument, and the court overruled the application on the petition for a rehearing, and refused leave to file a supplemental bill.