We do not entertain this bill barely upon the ground that the. Complainant lias discovered evidence since the trial at Law, (and which he of course could not then avail himself of,) but also from the peculiar nature of that evidence, it going to fix a perjury upon the principal witness in the trial at Law. It is therefore very unlike those cases where the newly discovered evidence, goes to support a charge made in the case at Law, by the applicant, or to repel a charge made against him. But it resembles those cases whore the, principal witness on a trial at Law, has been afterwards convicted of a perjury in his evidence in that case. In nucís cases, relief should be granted some way or other, at least we will not dismiss the bill, but will retain it sintO a hearing. It is not sufficient .that the newly discovered evidence, goes to repel your adversary’s charge» but it must destroy his proofs.
Peagram v. King, 9 N.C. 295, 2 Hawks 295 (1822)
IN EQUITY.
Peagram v. Ludy Edwards King and Richard Peagram King.
From Cumberland.
Where a bill setting forth the fact of a former trial at Law, and the discovery, after that trial, o ' evidence which goes to fix a perjury upon the only witness whose testimony was important in the trial, this Court will not dismiss the bill, but will retain it until the hear, mg-.
St is not sufficient tha1 the newly discovered evidence goes to repel your adversary’s charge, but it must destroy his proofs.
The Complainant, in his Ml!, set forth, that Richardson Peagram, the brother of this Complainant, in July, 1806, died intestate, possessed of certain negroes named, in the bill, and that administration on his estate was granted to this Complainant, who, by virtue thereof, took said slaves into his possession. That this Complain ant’s intestate, at some period during his life, fell into the company of a certain lewd woman, named Ludy Edwards King, with whom he was drawn into illicit commerce j that the said Ludy Edwards King was after-wards delivered of a child (the other Defendant in this suit) which she alleged was begotten by Complainant’» intesta-e. That after the death of Richardson Peagram. the said Ludy Edwards King, in her own name, and as prochein amy of Richardson Peagram King, commenced an action of detinue against this Complainant, in thé County Court of Chatham, for certain of the slaves bc-*296fore mentioned, claiming them by virtue of a parol gift ft-om said Richardson Peaeram: that in said Count} Court a verdict was found against this Complainant, on the single and unsupported testimony of one Joseph Jenks, and judgment was rendered accordingly. That the cause having been removed by writ of certiorari into the Superior Court of Chatham, was there pending when the above named Joseph Jenks died, and on the trial of the issues in the said Superior Court, evidence of the death of said Jenks, and of his testimony on the former trial being received, a verdict and .judgment were obtained a second time against this Complainant. After the trial in the Superior Court, rumours having reached Complainant, of confessions made by Jenks as to the falsity of his former testimony, he moved for a new trial, but on the most diligent enquiry, act being then able to discover the persons who could prove ouch confessions, he withdrew his motion.
The bill then proceeded <o state, that a short time previous to the filing thereof, Complainant discovered that he could furnish evidence to prove that the said Joseph Jenks had declared on his death-bed, that the testimony which he had given in the cause aforesaid was untrue, arid that he had been induced to perjure himself by the promise of the Defendant Ludy Edwards King, to give him one of the negroes to be recovered j that the said Ludy Edwards King had applied to Jenks, in his last illness, to procure his deposition, for the purpose of establishing the parol gift aforesaid, and that the said Jenks had refused to give it, declaring, at divers times, that the Complainant’s intestate had never, so far as he knew, given any thing to either of the Defendants to this bill; and further, that after the death of said Jenks, the Defendant Ludy Edwards K irg had declared, that she would give, to any person who would depose to the same facts which Jenks had testified, the same compensation winch Jenks was to have received, or even more, The hill prayed a *297perpetual injunction, to restrain all further proceedings upon the judgment obtained against this Complainant, and that a new trial of the issues might be directed.
And now Taylor moved to dismiss the bill for want of equity — and referred to Fentriss v. Bobbins, (JV*. C. Term. Rep. 177.)