Indisposition, mistake, or surprise of witness. witness. In Depeyster v. The Columbian Insurance Company,(1) on a policy of insurance. On the trial, the master, while on his cross-examination by the defendant, was seized with a fit, and could no further testify; but neither party desired the trial to be put off on that account. There was a verdict for the defendants; and now it was moved to set it aside, and one ground taken was, the sudden indisposition of the witness. Upon which, Livings ton, J., delivering the opinion of the court, observes: "A motion for a new trial is made on the following grounds, 1. Because the plaintiffs were deprived of the full benefit of the testimony of one of the witnesses, by reason of his sudden illness. This witness was not seized with a fit until the plaintiffs had examined and given him over to the defendants; but had it been otherwise, they should have suffered a non-suit. Instead of this, they proceed with the trial, examine other witnesses, and take the chance of a verdict on the testimony then in their power. After this they come too late for a new trial." It is quite clear from this case, that, should the plaintiff submit to a non-suit, or the party apply to the judge immediately for relief, and be refused, the court would extend relief. In Ainsworth v. Sessions, (2) a petition for a new trial was presented, on the ground that one Payne, who was relied upon as a principal witness in the cause, through surprise, or some [*217] unaccountable cause, was so disconcerted *and confused in his evidence, that neither court nor jury could understand him, whereby the petitioner lost his case; and that said Payne is now able to testify in the clearest manner. Plea in abatement. That said Payne is not a new evidence, and to grant new trials upon the after recollection and additional testimony of former witnesses, would open too wide a door, and be of dangerous consequence. By the Court-"Where a party is deprived of his most material evidence by some unaccountable cause, as by being panic struck, or by a paralytic stroke or other affection, (1) 2 Caines, 85. Indisposition, mistake, or surprise of witness. which for that time had deranged the recollection of the witness, so that the party loses the benefit of his testimony, reason and justice require, that the party should be relieved against such a misfortune, by a new trial, as much as when he is deprived of his evidence by sickness or absence; but in such cases the court ought to be extremely cautious that they be not imposed upon." So, the court will relieve against the mistake of a witness materially affecting the issue; as in De Giou v. Dover.(1) Action against the owner of a stage coach for the loss of goods. The coach set out from the Swan with Two Necks, Lad-lane, at which there is a board stuck up, to give notice that the proprietors will not be responsible for any parcel above the value of five pounds, unless entered and paid for accordingly. The goods were entered at the Gloucester coffee-house, in Piccadilly, which is a receiving house for this and many other coaches. No intimation was given to the plaintiff that this was not the original office of the coach. The bookkeeper of the Gloucester coffee-house, swore, at the trial, that there was not in his office any notice similar to that in Lad-lane. A verdict was accordingly found for the plaintiff. Plumer and Dauncey moved for a new trial, on an affidavit of the *bookkeeper, that he had been mistaken [*218] at the trial, and that such notice had been fixed up in his office. Piggott and C. Moore objected, that this would be a new trial, merely to supply a defect in the evidence, which the defendant ought at first to have provided against. But, per Macdonald, Chief Baron: "Since the argument of this case, we have consulted with Lord Kenyon and several of the other judges, as to the practice, and we find, that where an evident mistake has happened, it is usual to grant a new trial." So in D'Aguilar v. Tobin, (2) cited above; and in Richardson v. Fisher.(3) A new trial had been moved for in this case, partly on the ground, that the verdict was contrary to evidence, but (1) 2 Anst. 517. (2) 2 Marshall, 265; supra, p. 182. (3) 1 Bingham, 145. Indisposition, mistake, or surprise of witness. chiefly on an affidavit from a material witness, that he had made a serious mistake in giving his testimony. Vaughan, sergeant, showed cause against the rule. Per Curiam.-“If there were nothing else in this case, there must be a new trial on the important affidavit, that the witness has made a mistake." And, in The Inhabitants of Warren v. The Inhabitants of Hope,(1) it was held, that a new trial will be granted, where a material witness, whose testimony at the trial was against the interest of the petitioner, has since discovered that he testified incorrectly by mistake. But, in Kellen v. Bennett, (2) the court refused to grant a new trial on an affidavit, that a witness (called on the part of the defendant, and who had refused to release an interest which rendered him incompetent) had misapprehended the effect of the release, and was now ready to execute one. Action for seaman's wages. On the trial, the captain of the ship was called as a witness for the defendant, who refused to release his inter[*219] est, and a verdict, therefore, passed for *the plaintiff. Motion for a new trial, upon an affidavit by the captain, that he did not, at the trial, understand the meaning of releasing his interest; that he was now ready to release it; and that, in truth, he had no interest. It was urged, that the defendant had not sworn to merits; that the captain's interest was clearly estab lished, and that it would be a most dangerous precedent to permit a witness thus to retract what he had said at the trial. And, Best, Ch. J., having intimated, that the nature of the required release was repeatedly explained to the captain at the trial; The Court thought it would be too much to disturb the verdict, upon such an affidavit, when, from the absence of any deposition to merits, it was probable the result of a second trial would not differ from that of the first, and when the witness in question must be placed in the box, under circumstances so suspicious.(3) (1) 6 Greenl. 479. Indisposition, mistake, or surprise of witness. With this agrees the spirit of the decision in Depeyster v. The Columbian Insurance Company, (1) and cannot be said to be at variance with the general principle that, on all such applications, ought to govern the discretion of the court, inclining them to relieve whenever the mistake, surprise or accident occurs, without blame or suspicion, in a material part, and the party has merits, and would be otherwise without relief. Upon this principle the court acted, and furnished a strong example in Hewlett v. Cruchley, (2) where the defendant was surprised by the evidence of a witness. Action for a malicious prosecution. The defendant was an attorney. The plaintiff had been for fourteen years his clerk, whom he afterwards had indicted in seven bills for embezzlement, but declined to give evidence, and the plaintiff was, of course, acquitted. Upon this, the present suit was brought, and upon the part of the defendant, to show that there was a probable cause for [*220] 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, £2,000 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 pro (1) 2 Caines, 85. (2) 3 Taunt. 277. Impeachment of witness. duced 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) [*221] *IV. Impeachment of witness. Neither a direct impeachment of the veracity of the witnesses, nor affidavits of perjury, nor even an indictment for conspiracy or perjury, unless 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.(2) In the King v. Heydon, (3) 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 indict (1) Et vide 3 Marsh. Kent. Rep. 85. (2) 2 Tidd, 914. |