to answer. That since the trial, many circumstances had been discovered to detect the iniquity, and to show the subornation of the witnesses. The court, after a very strict scrutiny, granted a new trial on payment of costs. The justice and propriety of this determination appeared in a very strong light to many persons, who thought the whole story to be manifestly a scheme of villany supported by perjury. And the plaintiff never dared to try it again.

So, if the perjury or conspiracy is rendered probable, and the testimony must have operated as a surprise, as in Thurtell v. Beaumont.(1) In the first instance the court. refused to grant a rule nisi for a new trial, on the ground that subsequently to a verdict for the plaintiff, the grand jury had found a bill against him and others, for a conspiracy to defraud the insurance company. But on affidavits disclosing the conspiracy itself, and showing that the defendant did not obtain a knowledge of it till after the trial, so that the plaintiff's case was in effect a surprise on him, the court granted a rule nisi for a new trial, on payment of

costs.

And in Morrell v. Kimball.(2) A new trial was granted, on the ground of the perjury of the party's own witness, evidently a strong example of surprise. The reasons and the ground taken in opposing the motion are sufficiently explained in the opinion of the court, by Weston, J.-“ It has been made to appear in the present case, highly probable, that in the action originally tried between these parties, the petitioner for a review would have prevailed, but for the testimony of Daniel Philbrook. It further appears that in giving this testimony, Philbrook was guilty of wilful and corrupt perjury, of which he has been since convicted, and is now suffering the punishment awarded against him. Upon these facts the petitioner appeals to the

(1) 1 Bingham, 337.

(2) 1 Greenl. 322.

egal discretion of this court, praying that a writ of review may be granted him, that the cause may be again examined upon its merits, and that justice may be done between the parties. If the judgment rendered against the petitioner was obtained by perjury, he is not the less injured because it was not committed, in consequence of the procurement, subornation, or even privity of the adverse party. Though the latter may have been innocent of any charge of this nature at the time, it is more than questionable whether he can, in foro conscientiæ, continue to enjoy the fruits of the perjury, after it has been made apparent. As to the last objection, it is clearly a rule of law, that the party calling a witness shall not be permitted to attack his character by general evidence; yet he may, by other witnesses, disprove the facts to which he testifies. If therefore the facts thus testified to are directly proved to be false, there is no principle of law or of justice which prevents the party from availing himself of the truth of his case, although the credit of his own witness may thereby be impeached. New trials have been frequently granted, where there has been strong reason to suspect that perjury has been committed; much more ought they to be where the perjury has been clearly demonstrated."

But there being no allegation of surprise, the motion was refused in Proctor v. Simmons.(1) Action for an assault. At the trial, the plaintiff called two of her children and her sister as witnesses, to prove that the defendant had been guilty of an outrageous assault, in order to entitle her to large damages. The jury, however, found a verdict for her, damages one shilling only. On motion for a new trial on affidavits, that two of the witnesses had been guilty of gross perjury at the trial, the court observed, "That as the defendant had not sworn that he had been taken by surprise at the trial, there was no ground for the appli

(1) 9 Moore, 581.

cation; and that it would be a dangerous precedent to grant a new trial on the mere affidavit of the one party, that the witnesses of the other had been guilty of perjury."

So far the principle of the rule has been adopted in New-York. In Jackson v. Rowland,(1) in ejectment, witnesses were called on the trial to impeach the character of one Hay, for truth and veracity, a witness for the plaintiff. The jury found for the defendant on a case reserved. One point urged for setting aside the verdict, was, that Hay was discredited, and it was held that a subsequent impeachment of a witness cannot be insisted on in support of a motion for a new trial. "The character of the witness," say the court, "should have been attacked before the parol evidence was given; for should the judge have discredited his testimony, the plaintiff, for aught appearing to the court, might have offered other proof to the same point."

It is to be presumed that objections to a witness, on the ground of an indictment for a felony, would be at least as unavailing on a motion for a new trial, as an attempt to impeach him for that cause was held to be at the trial. In Jackson v. Osborne, ex dem. Gibbs,(2) in ejectment, one Joel Wood, a subscribing witness to a deed, was called to prove it. The defendant, for the purpose of impeaching the testimony of Joel Wood, upon whose oath the deed to Gibbs had been proved before the commissioner, offered to prove that two bills of indictment were found by a grand jury against him, one charging him with perjury, and the other with forgery, committed by him in relation to the premises in question; that he had absconded, and had ever since remained out of the territory of the United States, for which reason, he had not been tried; that subsequent to the indictments, and before the

(1) 6 Wendell, 666.

(2) 2 Wendell, 555.

commencement of this suit, Gibbs in person procured Wood, to make the proof, before the commissioner, certified on the deed. This testimony was objected to, by the plaintiff's counsel, and rejected by the judge. There was a verdict for the plaintiff, and on motion to set it aside, one of the points taken was, the rejection of the testimony offered to impeach Wood. Upon this the court observe: "The evidence offered to impeach the witness to the deed, was properly rejected. That he had been indicted for perjury and forgery, did not affect his competency, not having been tried and convicted. The credibility of a witness is not to be impeached by proof of a particular offence, but by evidence of general bad character. If it was not competent to prove that the witness had perpetrated the offences for which he had been indicted, (of which there could be no question,) it follows of necessity that the fact of his having been indicted was inadmissible evidence.”(1)

4. Intimately connected with the preceding rule is this, that a new trial will not be granted, to furnish an opportunity, to impeach a witness, upon a subsequent discovery of his interest or turpitude, or general bad character.

Thus, in Turner v. Pearte.(2) Action for withdrawing suit from mills of plaintiff, and verdict for defendant. Motion for a new trial upon two grounds-First. That it was a verdict against evidence. Secondly. Upon an affidavit, that it had been discovered since the trial that five out of nine of the witnesses on the part of the defendant were interested in the event of the cause, and, therefore, were incompetent, and ought not to have been received. The court, being of opinion that the weight of evidence was in favour of the verdict, discharged the rule on that ground; but first gave their opinions upon the other point, seriatim. Ashhurst, J.-"The regular time for objecting to the com

(1) Et vide, 2 Marsh. Kent. Rep. 130. (2) 1 Term Rep. 717.

petency of witnesses is at the trial. The ancient doctrine. on this head was so strict, that if a witness were once examined in chief, he could not afterwards be objected to on the ground of interest. Perhaps that strictness may, in some degree, be relaxed, by the custom of suffering witnesses to be examined conditionally, which is only waiving the objection for the time. But still the objection must be made at the trial." Buller, J.-" There has been no instance of this court's granting a new trial, on an allegation that some of the witnesses examined were interested, and I should be very sorry to make the first precedent. Anciently, no doubt, the rule was, that if there were any objection to the competency of the witness, he should be examined on the voir dire; and it was too late after he was sworn in chief. In later times that rule has been a little relaxed; but the reason of doing so must be remembered. It is not that the rule is done away, or that it lets in objections which would otherwise have been shut out. It has been done principally for the convenience of the court, and it is for the furtherance of justice." Grose, J.-"If this objection had been made before me at the trial, perhaps I might have admitted it; but then, by the rule of law, objections of this nature must be made at the trial. And if the plaintiff will insist upon the strict rule relative to the incompetency of witnesses, the defendant has an equal right to avail himself of the rule that the objection now comes too late."(1)

So, in Sells v. Hoare,(2) Vaughan, sergeant, for the defendant, moved for a new trial in this cause, on the ground, among others, that a person calling himself Joseph Manning, had been duly sworn on the gospels, as a christian ; whereas, it had been discovered since the trial, that his real name was Solomon Money, that he was a Jew before and

(1) Et vide, Soulet v. Loiseau, 6 Mart. Lou. Rep. 512. (2) 3 Brod. & Bing. 232.