The bill then proceeded to 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 deathbed that the testimony which he had given in the cause aforesaid was untrue, and 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; 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 anything to either of the defendants to this bill; and further, that after the death of said Jenks the defendant Ludy Edwards King had declared that she would give to any person who would depose to the same facts which Jenks had testified the same compensation which Jenks was to have received, or even more. The bill prayed a perpetual injunction to restrain all (297) further proceedings upon the judgment obtained against this complainant, and that a new trial of the issues might be directed.
Taylor for defendant moved to dismiss the bill for want of equity. We do not entertain this bill barely upon the ground that the complainant has 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 *Page 161 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 where the principal witness on a trial at law has been afterwards convicted of a perjury in his evidence in that case. In such cases, relief should be granted some way or other; at least we will not dismiss the bill, but will retain it until a hearing. It is not sufficient that the newly discovered evidence goes to repel your adversary's charge, but it must destroy his proofs.
PER CURIAM. Motion to dismiss denied.
Cited: McNaughton v. Roberson, 31 N.C. 259; Houston v. Smith, 41 N.C. 268;Burgess v. Lovengood, 55 N.C. 460; Stockton v. Briggs, 58 N.C. 314.
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