Rule as to attempts to mislead court and jury.

his agents, it would appear a new trial would not be granted. In Grovenor v. Fenwick,(1) after a trial at bar, and verdict for lessees in ejectment, a new trial was moved for upon the merits of the cause, and also upon an affidavit containing, in substance, that the defendant's witnesses were kept back by a report spread in Holland, when they were on their way to England, and that the witnesses that were already come over had been laid by the heels; but it did not name any one who had spread the report, or that it was by the agents or persons employed by Fenwick. And though the court were dissatisfied with the verdict for several reasons, one of which was, that the trial lasted above

sixteen hours, and abundance of evidence was given on [*56] *both sides, and the jury were agreed on their verdict in half an hour's time; yet the court would not grant a new trial, but declared, that after a trial at bar they would not easily grant a new trial, more especially in ejectment, where the first verdict is not peremptory, and where there is no foul practice. made to appear in the jury or party for whom the verdict was, as keeping back of witnesses, &c., in which cases alone it was discretionary in the court to grant it.

V. Rule as to attempts to mislead court and jury.

It is a general rule that all disingenuous attempts to stifle or suppress evidence or to thwart the proceedings, or to obtain an unconscionable advantage, or to mislead the court and jury, will be defeated, by setting aside the verdict.

Thus, in Anderson v. George(2) upon a rule for the plaintiff to show cause Why a verdict should not be set aside and a new trial ordered upon payment of costs." The plaintiff had sold goods to the defendant, who paid for them by a promissory note of one Hopley; which the defendant indorsed. The plaintiff demanded the money of Hopley, but indulged him with further day of payment several times, till he failed. The only

(1) 7 Mod. 156.

Rule as to attempts to mislead court and jury.

dispute between the parties was, "Which of them ought to bear the loss of this note;" for the plaintiff was paid, if the loss ought to fall upon him, through his neglect or indulgence in giving further credit to Hopley. There were two counts in the declaration one for goods sold, the other against the defendant as indorser of the promissory note. When the cause came on to be tried, though both parties came to try the real merits of the question between them, viz.: "Which should bear the loss of the note occasioned by Hopley's failure," and the plaintiff's agents had the note in court, *yet finding upon their own [*57] evidence, that the plaintiff had given repeatedly further credit to Hopley, they resorted to a trick, and rested their case upon proving the sale and delivery of the goods, which never was disputed. The defendant could not produce the note; it was in the plaintiff's custody. Relying upon its being the only ground of the plaintiff's case, the defendant had not given him notice to produce it. The court having ruled it could not be given in evidence, and the defendant had not entitled himself to prove the contents for want of notice to produce it, Lord Mansfield told them it was an improper artifice; that no verdict could stand which was so obtained. But the plaintiff refused to produce the note; and had a verdict of course.

It was contended, for the plaintiff, that the verdict was regular, and the plaintiff in no fault; for without notice he was not obliged to produce the note. Therefore the verdict ought not to be set aside. But the court thought the plaintiff had taken an unfair advantage, contrary to justice and good conscience; that the rules of practice must be general; but he who abused them in a particular case, should not shelter a trick by regularity. The plaintiff did not want notice to produce a note he had in court, and which he had laid in the declaration as his ground of action. Besides, he took a verdict for the price of the goods, though he had received satisfaction, the evidence of which was in his own custody, and suppressed; and they not only set aside the verdict, but without costs, and declared the next time that a party should obtain a verdict in the like manner, by an unfair, VOL. I.

6

Rule as to attempts to mislead court and jury.

unconscionable advantage, without trying the real question, they would set aside the verdict, and make him pay the costs.

The same principle governed in granting the motion in Bodington v. Harris.(1) This was an action for a nuisance, [*58] *and was defended by the landlord of the defendant. The attorney of the landlord told the defendant he need not attend the trial; and without the consent, and against the express directions of the defendant, he entered into a consent rule to abate the nuisance. The landlord being also dissatisfied dismissed the attorney, and told the defendant he must thenceforth employ an attorney for himself. An attachment having issued on the consent rule, a rule was obtained to show cause why the attachment should not be set aside, and a new trial had. The court thought there ought to be a new trial under all the circumstances, as it could form no precedent, except a case should arise precisely similar in all its points.

So, in Trubody v. Brain. (2) One Robert Brain was examined as a witness, who, on being asked if he had not had a conversation with Richard Haynes, the attorney of the plaintiff, on the subject, denied he ever had. Haynes being called on the part of the plaintiff, directly contradicted Brain, and swore to a conversation. Brain was committed for perjury, and Haynes directed to prosecute him, who next day stated to the judge he had mistaken the person of the witness, and Brain was discharged. Upon these grounds the defendant obtained a rule nisi. Per Cur.-"We think this is a case which calls on us in making this rule absolute, also to furnish the wholesome example of ordering that the plaintiff's attorney shall pay the costs of the former trial."

In the recent case of Jackson v. Warford, (3) where the silence of the plaintiff's attorney misled the defendant's counsel, the court appear to have decided on the same principle.

(1) 1 Bing. 187.

(2) 9 Price, 76.

Rule as to attempts to mislead court and jury.

This was an action of ejectment, and verdict for the plaintiff. The defendant moved for a new trial, as well *on [*59] account of the ruling of the judge, as on the ground of sur

prise, arising from the fact that the attorney for the plaintiff, on being called on to produce, in pursuance of a subpoena and notice, a deed of the premises in question from the wife of Constantine to Rouse, found by him among the papers of Rouse, and admitted by him after the commencement of the suit to be in his possession, stated that he had delivered the deed to a son-in-law of Rouse, who had sent it to counsel at Troy, but without apprising the defendant's counsel. Upon this point the court remark"There can be no question but that a new trial should be granted on the ground of surprise. From the conversations had with the plaintiff's attorney on the subject of a conveyance for lot No. 60, and from his silence as to the disposition he had made of it, the defendant and his counsel had every reason to suppose that the plaintiff's attorney had the deed in his possession and would produce it.

In Niles v. Brackett.(1) Assumpsit on the warranty of a horse, which died soon after it was purchased. The question at the trial, before Parker, Ch. J., was, whether the disease of which the horse died existed before the sale, or was acquired afterwards; and the chief justice stated, that the fact was rendered very doubtful by the testimony. One Richardson was offered as a witness by the defendant, and testified in the cause, which being so nicely balanced, the chief justice observed, his testimony was undoubtedly material. No objection was made when he was offered, but after the trial it appeared that he was one of the defendant's bail in this suit, which fact was not known to the plaintiff, or his counsel, until after the trial. On this ground a motion was made by the plaintiff for a new trial, a verdict having been obtained by the defendant. For the defendant it was contended, that the objection *came too late, and that the [*60] defendant had been negligent. But a new trial was

(1) 15 Mass. 378.

"

Rule as to attempts to mislead court and jury.

granted, it appearing that the interest of the witness was not known to the plaintiff until after the trial, and that it was known. to the defendant, who produced him.

So, in Hylliard v. Nickols.(1) Petition for a new trial in an action brought by Hylliard against Nickols, upon the statute entitled an act to prevent the slave trade-alleging that said Nickols, at a certain time, had transported out of this State, into the State of Virginia, two negro children, contrary to the force and effects of said statute. And verdict for defendant. It further appeared, that to show he had carried the children with him as a part of his own family, he produced false depositions and documents. It was contended, for the defendant, that it was in the nature of a criminal prosecution, and a new trial could not be granted. But, per Cur." This is not a criminal prosecution, but a civil action, brought on a remedial statute to recover the penalty enacted, to prevent the exportation of persons of a certain description, out of this State into another State, for the purpose of selling them. But, was it a criminal prosecution, an acquittal obtained by forgery and perjury, by the procurement of the prisoner, would be set aside in favor of the public."

(1) 2 Root, 176.