(1) There was sufficient evidence admitted to show all the essential facts as to the perjury in the previous case necessary to present the question within the principles laid down inNowack v. Metropolitan Street Railway Company (supra).
Inasmuch as proof was admitted on the trial, which was undisputed, as to all the facts relating to the action of the guardian ad litem and former attorney in procuring the perjured testimony there offered, except the mere inducement or consideration by which it was procured, and the proof also showing that the guardian ad litem said he "would make it all right" with the witness or witnesses, we are of opinion that the question whether an amount was paid, or promised to be paid in money, is not of sufficient importance to justify the reversal of this judgment, as it does appear, substantially, that there was to be paid a compensation of some kind for *Page 448 testifying in the case. In fact, we regard it as immaterial whether these convicted felons testified falsely by reason of friendship, self-interest, money or any other consideration which they deemed sufficient to induce them to commit the crime. It does sufficiently appear that the then attorney for the plaintiff and the guardian ad litem were present at the interviews with the witnesses, where this wicked scheme was concocted, and this being so, the jury were possessed of every material fact relating to the perjured testimony offered upon the first trial.
(2) We are also of opinion that in the case of an infant of such tender years as to be non sui juris, he is not, and ought not, to be held responsible for the actions of a dishonest attorney and guardian ad litem who so far depart from their duty as officers of the court as to commit a felony, to the great prejudice of this helpless infant, who is a ward of the court.
This record discloses that the plaintiff, by reason of this accident, is a physical and mental wreck, and that his case on the second trial was supported by unimpeached witnesses. We are, therefore, of opinion that this judgment should be affirmed.
PARKER, Ch. J., GRAY, O'BRIEN, HAIGHT and VANN, JJ., concur for reversal; BARTLETT and MARTIN, JJ., dissent.
Judgment reversed, etc.