a probable cause for the prosecution, it was proved that a case had been laid by the defendant before a barrister, who was examined as a witness, upon the subject of preferring the indictment. He however stated that he believed that the case exhibited to him at the trial, was not the whole of the case laid before him for his opinion; that more papers had been laid before him, and that a strong case had been stated. He mentioned having given an opinion in writing, which was not annexed to the case then produced; and that the case on which he advised, stated the names of the parties, which this paper did not contain. The court charged there was no probable cause, and verdict for the plaintiff, £2000 damages. Motion for a new trial; and one of the grounds urged was, that the evidence given, with respect to the case, was completely different from that which the defendant had reason to expect, and was a surprise on him; that the witness before whom the case had been laid for his opinion, previous to the prosecution, had been mistaken in his recollection, and that no other case or written paper had ever been laid before him, than that which was produced on the trial, which was annexed to the affidavit. And, per Mansfield, Ch. J.-"As to the ground of surprise, was it ever put to the decision of a court, that when the defendant has called witnesses, and they proved contrary to his expectations, what was false and contrary to truth, the defendant should therefore ask a new trial? Such a thing was never heard of." Heath, J.-"As to the evidence of the barrister, if it clearly appeared to my satisfaction that the witness was surprised, and gave evidence contrary to the expectation he had raised, I would send it to a new trial; but no such a thing appears." Chambre, J.-"I entirely agree that the court ought not in this case to interfere with the province of a jury; although there are cases in which the court may properly do that, but this is not one of them."(1)

(1) Et vide, 3 Marsh. Kent. Rep. 85.

3. Neither a direct impeachment of the veracity of the witnesses, nor affidavits of perjury, nor even an indictment for conspiracy or perjury, unlsss the case is so gross as to make it probable the verdict was obtained by perjury, or that the false testimony occasioned a surprise upon the party, will be sufficient cause to set aside a verdict, and grant a new trial. (1)

In the King v. Heydon,(2) it was held, that a witness indicted for perjury was not a reason to postpone judgment against the person convicted. The defendant was convicted of bribery, and it was now moved to postpone judgment, till an indictment, which he had preferred against one Burbage, for perjury in his evidence, was determined. Norton, solicitor general, and Morton, showed for cause, that this was a motion of the first impression, and of very dangerous consequence, merely to delay justice. That the perjury assigned in the indictment is not in respect of the fact, for which Heydon is convicted, but a collateral circumstance :-that Burbage offered to take his trial immediately after the indictment found, but the defendant refused to consent to it; and, after deliberation had, per Lord Mansfield, Ch. J.-" I am clear, that Heydon can be no witness in this case, if they mean by this indictment to alleviate the judgment of the court for the bribery, because he is swearing in his own cause. And the witnesses on the indictment having all been previously examined at the former trial, makes an end of this motion; for their credit has already been weighed by a jury, and found wanting."

In Benfield v. Petrie.(3) Action of debt on the statute against bribery, and verdict for plaintiff. A rule to show cause why there should not be a new trial had been obtained on an affidavit of the defendant, which stated that

(1) 2 Tidd, 914. (2) 1 W. Black. 404.

(3) 3 Doug. 24.

two of the plaintiff's witnesses at the trial, whose names were Wilks and Shilling, had been indicted for perjury in this cause on the evidence of several persons, and that true bills had been found. Lord Mansfield-" This is an action for bribery. All the facts given in evidence go on the ground, that two persons were agents, and that the bribery was committed by them. Evidence of these facts was given by seven or eight persons besides the parties indicted, and both the persons, who bribed, were examined for the defendant at the trial. The jury found a verdict for the plaintiff, against the evidence of these two persons, on grounds which impeach that evidence. The judge, who tried the cause, is satisfied with the verdict, and, therefore, it stands as a verdict with the weight of evidence in its favour. The motion for a new trial rests solely on the ground, that two of the witnesses have been indicted for perjury. It is not an established rule, that it is, of course, to stay a verdict, because the witnesses in support of that verdict have been indicted for perjury."(1)

So, in Wheatly v. Edwards.(2) Action of crim. con. and verdict for plaintiff. On a motion for a new trial, there was strong evidence of perjury in the witnesses to the criminal conversation on express testimony against them. Lord Mansfield particularly observed, there was direct testimony of subornation of perjury by the plaintiff's consent, of the witnesses; and this in different places, by three different witnesses. On the other side, four persons swore to the character of one of the witnesses who was living, and who swore the other was dead, and that he had seen him in his coffin, and there was a witness who swore that this man was alive; and yet his lordship said, that there appeared no ground on the evidence for granting a new

(1) Et vide, Macpherson v. Petrie and Petrie v. Miles, 3 Doug. 26 and 27. (2) Lofft, 87.

trial; but that they might proceed by indicting the witnesses for perjury.

And with this the modern practice agrees. In Warwick v. Bruce, (1) the plaintiff obtained a verdict for £150, and had judgment, upon which the defendant brought error, and after argument, judgment was affirmed. But before the case came on to be heard in error, the defendant preferred an indictment against two of the plaintiff's witnesses for perjury in their evidence at the trial, and on a former day in this term, obtained a rule nisi, for staying execution upon the judgment until the trial of this indictment, upon an affidavit made by himself, charging the said witnesses with perjury. But per Lord Ellenborough, Ch. J.-"It would be highly dangerous to allow this rule to be made absolute, for this would be a receipt to every person,after verdict and judgment against him, how to delay the fruit of such judgment, by indicting some of the plaintiff's witnesses for perjury. And should this rule be made absolute, it would, perhaps, prevent the plaintiff from being a witness at the trial of the persons indicted." And because this seemed to be a new and dangerous experiment, the court directed the rule to be discharged with costs.(2)

So, also, in Seeley v. Mayhew.(3) Assumpsit against the defendant, as acceptor of a bill of exchange, drawn by T. Parish. The defendant's handwriting having been proved, the defence was, that the bill had been given for a horse sold by Seely to Parish, which was warranted sound, but was ill at the time, and shortly afterwards died. The jury having found a verdict for the defendant, Addoms, sergeant, now moved for a new trial on the ground of surprise, the defence not having been anticipated, and true bills for perjury having since been found against the witnesses, who spoke to the warranty, and the property of the

(1) 4 Maule & Selw. 140. (3) 4 Bingham, 561.

(2) Vide, 4 Taunt. 640.

horse being in Seeley. But the court thought that was a circumstance of which they ought not to take notice; and observing, that Lord Mansfield and Lord Erskine had expressed the greatest disapprobation of indicting witnesses while a cause was yet pending, refused the rule.

And, in Pott v. Parker.(1) Motion to set aside verdict for plaintiff. There was a sale of wheat, and the only question was, whether the price of it had been paid. There was contradictory evidence, and an indictment for perjury had been found against the witnesses for the plaintiff, and the character of the defendant was at stake. And per Lord Ellenborough, Ch. J.-"It was a question upon the credit due to the witness, and it was left to the jury. To grant a new trial on the ground that an indictment for perjury has been found, would be new and dangerous. The only thing possible would be, to stay execution during the finding of the indictment for perjury, but that we cannot grant."(2)

And it has been held, that even a conviction for perjury will not induce the court to stay proceedings, much less to set aside the verdict.(3)

To the universality of the rule, there have been cases held as exceptions. Of this kind is Fabrilius v. Cock.(4) But there the whole case resolved itself into a fiction, to the entire satisfaction of the court. The case was this. The plaintiff sued in trover for 6,000 pagodas. The defendant always denied the whole story, but was not able to contradict the proof at the trial. The jury, to the satisfaction of Lord Mansfield, found a verdict for the plaintiff for £2,400, the value of the pagodas. The defendant moved for a new trial, upon the ground that the whole was a fiction supported by perjury, which he could not be prepared

(1) 2 Chitty's Rep. 269. (2) Sed vide, contra, 1 Greenl. 322. (3) 2 Price, 3. Et vide, 9 Price, 89.

(4) 3 Burr. 1771.