The Sun.
London, England, 1851-06-18 00:00:00

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directing that the costs should abide the event-athar4
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say, if the plaintiff succeeded upon the second trial, li,, • ; eee
should have his costs. At the time the rule was grstereedssalaiea . ni
there was nothing to convince the Court that the vex4i.cOz eipetin4 'rc
had been improperly obtained, while the Ciiiirt ehidoa ateu'ee,e' ?'
every reason to believe that Casimir Itheinaai; 74, ''...e7
would be again called, to be confrontl. aselak ""+.
of i
those who could show that he had been gu4 - '4a/-"'
of perjury. Under those circumstances, it would 'h*...,
been unbecoming in the Court to have pronounced thai
Itheinbold had been guilty of perjury by ordering the plain-
tiff to pay the costs. Therefore I think the rule was pro-
perly framed, that the verdict should be set aside, the costs
to abide the event. But what has since happened? Con-
sider what has taken place since that rule was made. One
objection made to this rule is, that the application has
come too late, but I think it could not possibly have
been made sooner, because the former rule having
hem granted, it would have been impossible un-
til the second trial had taken place to apply
to reframe the rule. Even if the defendant had been in pos-
session of any evidence to show that perjury was committed
on the first trial, the Court would not have entertained an
application to alter the terms of the rule until the second
trial had taken place. Therefore I think no delay is attri-
butable to the defendant. He makes this application when
the costs are to be taxed, and the question is what costs he
shall be allowed. Now I hope we are not to be governed by
any technicalities, such as those which have been urged upon
us, that after a rule has once been made it cannot be altered.
The C urt has always in its own power to control any rule
which it has pronounced until final judgment has been ob-
tained upon it. Well, then, is there nut strong evidence in
this case from which it may be fairly inferred that the first
verdict was obtained by perjury, and that the plaintiff was
privy to it? That Rheinhold perjured iiimeelf I cannot enter-
tain the smallest doubt, because upon the application for the
new trial there were the strongest affidavits to show that no copy
of the newspaper had been published, that none could have
been purchased in the manner described. But when the se-
cond trial took place, where was Casimir Rheinhold? He
was not forthcoming. Certainly he was not in the witness-
box. The Learned Counsel who conducted the case for the
plaintiff said it is much to be regretted that Casimir Rhein-
hold cannot be called. He said he could not be found, but
at all events he was not called, and therefore there was no
evidence at all to support the libel of September, 1830, and
the defendant obtained such a verdict as he would have se-
cured on the first trial, had it not been for this perjured evi-
dence. The defendant would have been entitled to his costs
had Casimir Rheinhold not been called on the first trial, and
surely it could not be said now that he was not equally
entitled to them. What evidence is there to lead
to the conclusion that the plaintiff could rot have been
cognizant of the perjury? Ile has denied what has been
sworn by Eason, but he has taken no notice of what is
sworn by Goddard. Now what does he swear? He swears
that he
gives salv
no Casimir Rheinhold go into Brunswick House on
the 18th of January, a few days before the trial, and the
Duke
cannot doubt thate xopnlatnhaeti
josnthonof tjhaantu
aproyint.c
asiTmhirerßefhoreeinl.
hold was at Brunswick House, and I cannot doubt that the
Duke of Brunswick knew where he was at the time of the
second trial. He has not denied the allegations contained
in the affidavits, nor does he give any explanation of what
took place on the 18th of January. Ile gives no informa-
tion whatever of the instruction svhich he gave to the
Learned Counsel, to the effect that Casimir Rheinhold had
lett the country. There was no evidence to show that
Rheinhold had left the country, and therefore, however pain-
ful it may be to me to come that conclusion, I cannot help think-
ing that when Rheinhold showed himself in theawitness-box
the Duke of Brunswick was fully aware and oogitizant of the
nature of his evidence. I cannot bring my mind to doubt
that Rheinhold was known to be a witness whom the Duke
ought not to have brought forward, and if that be so I think
it is not now too late to make this application. I think it
would not be creditable to the jurisprudence of this country
if the defendant, against whom an action has been brought,
for which there was no foundation, and against whom a ver-
dict has been obtained by perjury, should not be indemnified
by obtaining those costs which that perjury had produced.
Upon this point my mind is made up, and I am clearly of
opinion that this rule ought to be made absolute.
Mr. Justice PATTESOX regretted that he could not concur
with the Lord Chief Justice as to the rules of the Court, and
the more so as he agreed with his Lordship as to the justice
and propriety of the principles laid down by him. He (Mr. Jus-
tice Patteson) thought that the Court had no power to do
what was now asked, and it was admitted that there was
no former instance of such a proceeding. The opinion of
Lord Mansfield had never been acted on, and with all due
submission to Lord Mansfield, he (Mr. Justice Patteson)
doubted whether that opinion was correct. If perjury was
committed, the proper remedy was that of indicting the
parties guilty of committing it; but if the rule now pro-
posed was adopted, it would be very difficult to know where
to step. It would likewise have been difficult to
mould the rule for the new trial differently from what it
was, for the same difficulty would still have arisen as to
the application of it to the party himself. If a new prac-
tice was to be introduced it should be done on the very clear-
est case, and he was not satisfied that this was one of that
sort. He was not satisfied that the imputation was brought
home to the Duke. No doubt the fact that Rheinhold was
not even mentioned in the Duke's affidavit was suspicious;
but suspicion was not sufficient. If the case had rested on
laason's testimony, it would be that of a person on whom
much reliance could not be placed. All this led to the belief
that the Duke knew at the date of the second trial that
I:heinhold was not a witness to be trusted, but was not suffi-
cient to show that he was aware of it before the first trial.
t-. 2.0 that if the Court had the power, this was certainly not a
case in which to exercise it; but he was of opinion that the
Court had no such power, and that such a rule would only
lead to an increase of perjury.
Mr. Justice Coes:rune:re was inclined to think that the
Court might have the power to do what was now asked, if
the circumstances justified it, but he did net think that the
circumstances here did afford a justification for it. A jury
would hardly have felt justified in finding the Duke guilty,
and yet, if he was not, there was no ground for making this
rule absolute.

•

Mr. Justice ERLE, though well inclined to prevent from
obtaining costs any person who had been guilty of suborna-
tion of perjury, he did not think that the Court could pro-
ceed to effect such a purpose by trying the question of per-
jury on affidavits. And for himself, he must say, that in
this case he did not think that subornation or perjury had
been committed by the Duke; and that if that question had
been submitted to a jury there might well have been a ver-
dict of not guilty.
Rule discharged.