| N.C. | Dec 5, 1823
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 R. Pegram 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 declared in his last illness that he had (611) done so, betraying at the same time a deep sentiment of remorse at the recollection of his atrocity. That though a rumor to that effect was floating about, and had actually reached the ears of the complainant, in consequence of which he 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; but that afterwards, and too late to obtain redress at law, he 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, but they have all been affirmed by the 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 inquiry 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 has 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 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. 2 Vern., 240.
It is, in general, true both at law and in equity that a new trial will not be granted on the ground of newly discovered evidence, when it goes merely to impeach the testimony of a witness at a former trial, nor to let in cumulative evidence as to matter which was principally (612) controverted at the former trial; but that is very different from newly discovered evidence which goes utterly to destroy *337 the former testimony and cut it up by the root by showing that it was founded in perjury. Accordingly, both courts furnish instances of a new trial being granted for the latter cause.
A new trial was 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 had 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 shows (as far as such a fact can be affirmatively established) that he knew not by whom to prove it until after the trial, when Peter Avent 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 shown 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 of Assembly relative to the trial of issues of 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 arising from them, have been established by 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 (613) came; and upon the 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.
PER CURIAM. Decree accordingly.
Cited: Pemberton v. Kirk,