#### JOHN R. DYCHE *against*A. J. PATTON *and others.*

This Court will not set aside a verdict obtained in a court of law by perjur}', 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.

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 E. 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 *333swore that be, acting as tbe agent of tbe said. J. 0. Morris, made a *bona fich*sale of all tbe said store-goods to tbe plaintiff, before tbe executions in their bands were levied on tbe same, and before any lien attached on tbe said goods in favor of these executions; that by means of the said false oath, tbe said A. J. Patton was enabled to recover, and did recover, from tbe plaintiffs, a large sum of money, to wit, tbe sum of $550, with costs of suit, amounting in all to $741; that tbe said A. J. Patton well knew that tbe said oath of tbe said G. P. Morris was false, and that be 'wilfully and corruptly suborned and procured tbe witness Morris, thus falsely to testify in bis behalf; that plaintiffs bad just found out, during the week in which tbe bill was filed, that they could prove tbe falsity of tbe testimony given by tbe said G. F. Morris on tbe 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.

Tbe answers of tbe defendants denied fully tbe facts alleged; and at tbe August Term, 1852, of the Supreme Court, the judgment dissolving the injunction previously obtained, was affirmed. (See 8th Ire. Eq. Eep. 595.)

Tbe bill was continued over as an original bill, and testimony taken in tbe cause; but as tbe opinion of tbe Court proceeds on tbe want of equity in tbe plaintiff’s bill, it is not deemed necessary to note further tbe facts stated in tbe answers or the proofs.

Tbe cause being set down for bearing, was sent to this Court for trial.

*J.*IT. *Woodjm,*for tbe plaintiff.

Baxter, for tbe defendants.

Nash, C. J.

Tbe bill, in substance, is to procure a new trial of a cause which bad been previously tried between tbe parties, in tbe Superior Court of Macon county, upon tbe ground, that tbe verdict was obtained on tbe evidence of *334one Gideon Morris, who had committed perjury in swearing to the facts he did. The bill charges that the defendants, Patton and Col vert, 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 Tayloe, 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 v/gon whose testimony the verdict was*given, *has loeen convicted of p&rj'u/ry.”*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 Su*335perior 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.

Pee Cueiam, Bill dismissed.