
    Alexander Forsythe vs. David McCreight.
    
      Estoppel — Judgment—Appeal—Practice.
    After a verdict for pJaintiiTia an '’.ction of debt, defendant filed his bill in this Court for injunction, alleging the same matter he has pleaded as defence to the action at law, and the discovery of additional testimony: Held, that the judgment at law was conclusive.
    Plain tiff, in his ground of appeal, having asked only for an injunction, the Court refused to consider whether he was entitled to a decree for account of moneys paid.
    BEFORE DARG-AN, OIL, AT CHESTER,
    JULY, 1858.
    Dargah, Ch. On the 18th February, 1856, the plaintiff purchased from the defendant, McCreight, a tract of land in Chester District, containing two hundred and ninety-seven acres, at $18 per acre. He paid in cash four thousand dollars, and gave his sealed note for the balance, viz: $1367, payable 1st May, 1856, and the plaintiff then received titles from the defendant. The defendant brought suit upon this single bill, at October Term, 1856 ; to which suit this plaintiff appeared and pleaded the general issue. Pie also pleaded a special plea,in words as follows: "And the said defendant, by his said attorneys, for further plea in this behalf, by leave of the Court now for that puipose first had and obtained, says, that the said plaintiff, his action aforesaid thereof against him, ought not to have and maintain, because, he says, the said sum of money mentioned in the supposed writing obligatory, was in part the purchase money of a certain tract of land, containing three hundred acres, situate in the District of Chester and State aforesaid, bounded by lands of David McWilliams, James Miller, James Loyd, and others, which said tract of land the said plaintiff, on the 9th day of February, 1856, at the place aforesaid, bargained and sold to this defendant, at $18 per acre, and the said plaintiff, at and before the time of the said sale, and on the day of the said sale, stated and represented that there was a valuable gold mine on the said tract of land, fraudulently and deceitfully, for the purpose of inducing said defendant to purchase said land, and the said plaintiff, at or before the time of said sale, to wit, on the 10th January, in the year aforesaid, at the place aforesaid, in order to produce a belief in the said false and fradulent representation so made as aforesaid, of a gold mine being on said land, fraudulently and deceitfully caused and procured large quantities of gold ore from gold mines in the State of North Carolina, to be placed and deposited in pits dug in said plantation, by said plaintiff, and also the day and year aforesaid, at the place aforesaid, caused and procured gold dust mixed up with the clay in said pits dug by him on.said land, fraudulently and falsely intending to produce the belief of the said defendant, that a valuable gold mine existed on said plantation, or tract of land, and thereby enhance fraudulently and falsely the value of said land; and on the day and year aforesaid, at the place aforesaid, and before the sale aforesaid, took up and carried the gold dust and gold ore so placed fraudulently and put by him in said lands as aforesaid, to a jeweler, and caused the gold therein to be extracted, and thereby, on the day and year aforesaid, at the place aforesaid, fraduleutly represented that the gold^extracted from the ore aforesaid was the product of the ore existing by nature on said land, and by reason of said false and fraudulent representations and acts of plaintiff, so made to said defendant aforesaid,induced him, the defendant, to purchase said tract of land at eighteen dollars per acre at the place aforesaid, and on the day aforesaid, and the said defendant avers, that no gold existed naturally on said land, and that the real value of said land did not exceed five dollars per acre, and that the said plaintiff, by his false and fraudulent representations so made as aforesaid, induced this defendant to pay him, the said plaintiff, the sum of eighteen dollars per acre for the said tract of land, and paid him, the plaintiff, the sum' of three thousand five hundred dollars, in part of the price so agreed upon for said tract of land, and executed said supposed writing obligatory to secure the payment of th.e bal-anee of the purchase money of the said land, the day and year aforesaid ; and the said defendant avers, that the said plaintiff on the Say and year aforesaid, at the place aforesaid, well knew that no gold existed on said land, and well knew that by false and fraudulent misrepresentations aforesaid, so made as aforesaid, the said defendant was induced to give for the said lands the said sum of money aforesaid, and that the said tract of land was not worth more than five dollars per acre for agricultural purposes, and well knew, on the day and year aforesaid, that the only inducement of the said defendant to make said purchase was the belief, in the mind of the said defendant, by reason of the false and fraudulent misrepresentation so made by the said plaintiff, that a gold mine of great value existed on said land so bought as aforesaid ; therefore this defendant says, that the consideration of the said supposed writing obligatory has wholly failed, to wit: on the day and year aforesaid, and at the place aforesaid, all of which this defendant is ready to verify, wherefore he prays judgment, whether the said plaintiff ought to have, and maintain his action aforesaid against him.”. In answer to this plea, the plaintiff (in that case) filed his replication, denying all the allegations therein contained, and made a tender of issue, and the defendant having joined issue, the same with the general issue came on to be tried at Fall Term of the Court of Common Pleas for Chester district, for 1857. And the same having been submitted to tlje jury, the said jury found a verdict in favor of the plaintiff for fifteen hundred and two dollars and forty-three cents. The defendant in that action, (the plaintiff in this) gave notice of amotion for a new trial in the Court of Appeals at its next term, on four grounds, which were in words following, to wit:
    1. “Because the presiding judge erred in ruling, that an affidavit to continue the case, stating what certain witnesses would prove, piust be made by the defendant himself, and not by the attorney as his agent.
    2. “ Because from the proof, it was clear that the land, the consideration of the note sued on, was not worth more than five dollars per acre; that the plaintiff, by artifice and fraud, had produced a general belief that a valuable gold mine existed on said land, and by reason of this belief, so fraudulently produced by him, obtained for said land eighteen dollars per acre, when from the proof, it was clear, that not a particle of gold had ever existed by the operation of nature, on said land; and the verdict of the jury, allowing the plaintiff the full benefit of his proof, was not only contrary to the evidence, but without any evidence to sustain it.”
    3. “ Because it was clear from the proof, that the plaintiff had caused, and procured gold filings and gold ore to be placed on his land, and caused the same to be extracted and exhibited to the defendant, thus inducing the certain belief that a real gold mine existed on said land; and the verdict of the jury allowing him the full benefit of said fraud is contrary to lew.”
    This appeal came on to be heard before the law Court of Appeals in Columbia, at December Term,'1857, when the same was dismissed. The plaintiff entered up his judgment on the said verdict, for--dollars, which, together with interest ^nd costs, amounted to the sum of one thousand six hundred and sixty-seven dollars and thirty-one cents, for which sum the said plaintiff sued out his writ of fieri facias on the-day of--A. D. 1857, and lodged the same with R. G. Pagan, the Sheriff of Chester district, who threatened to levy the same on the goods and chattels of the defendant in satisfaction of said execution.
    The defendant in said execution, Alexander Forsythe, on the 2nd March, 1858, filed a bill against David McCreight, the plaintiff in said execution, and R. G. Pagan, Sheriff as aforesaid, of Chester district, praying for a perpetual injunction to restrain the enforcement of the said execution; substantially, it is a bill filed for the purpose of obtaining a new > trial of the issue already tried in the Court of law, in the action which has been described, wherein David McCreight, was plaintiff, and Alexander Forsythe, the plaintiff in this bill, was defendant, on the ground of alleged newly discovered testimony.
    The plaintiff, in his bill, states the contract for the purchase of the land, the cash instalment, the execution of the single bill for the balance of the purchase money, the suit at law instituted against him by said McCreight on said single bill, and he charges the fraud upon him by the said McCreight, and the circumstances attending it, and the manner in which it was done, substantially as it was stated in his special plea in the aforesaid action at law. And after stating the result of the said trial at law, the issuing of a writ of fieri facias against him for the amount of said verdict, interest and costs, and that he, the said plaintiff, had paid into the hands of said Sheriff Pagan, the sum of sixteen hundred and eighty-four dollars in lieu of bond, for the purpose of obtaining time to apply for a writ of injunction, he proceeds to charge that at the time of the said trial at law he had no knowledge of evidence, by which he could show that the said David McCreight had procured and caused to be procured fraudulently and for the purpose of enabling him to sell said land at a price greatly above its intrinsic value, gold filings and gold ore brought from mines in North Carolina, to be deposited in pits dug by him on said land. That before the said trial, he had made the most diligent search to procure such testimony, but his efforts in that respect were unavailing, and at said trial he was unable to prove that the said David McCreight had so fraudulently salted said alleged gold mine, and by reason of the want of proof, the said judgment of said Court was rendered against him for the sum aforesaid. That since the trial of said cause (the plaintiff alleges) that he has discovered testimony certain and reliable, and showing conclusively, beyond reasonable doubt, that the said David McCreight did, by himself and agents employed by him, fraudulently, procure gold filings and gold ore, and did cause the same to be mixed up with the earth in the pits dug by him on said land, and did thus fraudulently, craftily and deceitfully produce the conviction on the mind of the plaintiff, that a rich and valuable gold mine existed on said land. And that by such fraudulent and deceitful actings and doings of the said David McCreight, he effected a sale to the plaintiff of said land, and obtained eleven dollars per acre for said land more than it was worth. The firm conviction on the plaintiff’s mind, that a valuable gold mine existed on said land, was the sole and exclusive motive operating on him in making said purchase. The plaintiff further says, that about four weeks from the time of said sale, the said McCreight left this State to parts unknown to him, and that ever since, he has remained out of the limits of the State, except during one short visit, of which the plaintiff was not aware, until said McCreight had again left, so that he, the plaintiff, had no opportunity of filing a bill of discovery against the said David McCreight, to compel him to disclose his fraudulent,actings and doings aforesaid. The plaintiff further states that the evidence he has discovered since said trial, was not communicated to him, butto his attorney by his attorney’s friend, who had received it confidentially, from the. witness, who was a near relative of the said David McCreight. He further states, that he had paid into the office of the Sheriff of Chester district, the sum of sixteen hundred and eighty-four dollars, the full amount of the said recovery had against him, which sum he was compelled to pay said Sheriff before he could have time to apply to this honorable Court for an injunction to restrain the enforcement of the said writ offieri facias after discovering the said testimony aforesaid. He prays for an injunction against the said Pagan, restraining him from paying the said money to the said David McCreight, and for a perpetual injunction against the enforcement of the said judgment and execution, and in case the said David McCreight should appear and make himself party to the bill, he prays that he, the said David McCreight, may be decreed to account to him for the difference between the true value of the said land, and the sum which plaintiff had agreed to pay him, and for further relief.
    The defendant has not appeared to answer, but by his solicitor, he has submitted a plea in bar to the plaintiff’s suit. He has pleaded the former action at law between those parties, and the trial on the same subject matter, and the verdict and judgment, which he has set forth with great precision, in bar to the plaintiff’s bill in this cause.
    Thus„the case stands. I have endeavored to present it as clearly as possible. It is a case of novel impression. I have not derived any assistance or light from the argument or suggestion of counsel;'
    It is, as I have said, an anomalous case. I am aware of no instance where, after a trial and judgment at law, this Court has entertained a bill for a new trial, and to try the same issue over again in this Court, on the ground of newly discovered testimony, interest reipublicas ut sit finis litium. This maxim of law has a weighty influence in the disposition of such cases, and in the formation of the rules and regulations under which they are entertained. The Courts of Law and Equity have each afforded relief on the ground of newly discovered testimony, in a cautious and guarded manner, and to a limited extent, on rules based much upon the same philosophy, but varying somewhat in particulars. Each of those Courts has, so far as I know, confined itself, in giving relief on these grounds, to cases arising, and by proceedings carried on, in its own jurisdiction and forum. The court of equity does sometimes, in reference to its own decrees, and under the most cautious and stringent rules, entertain an application for a re-hearing, on the ground of newly discovered evidence. One of the rules is that the aggrieved party must previously apply by petition to the Court for leave to file such a bill. The evidence must be material and credible, and to this end he must disclose, by affidavit, what the newly discovered evidence is, and the name of the witness, that the Court may judge of its materiality and credibility, and know whether it will substantially vary the case made on the first trial. The evidence must be such as existing at the trial, was unknown to the applicant, or'could not have been known and procured by him with a proper degree of diligence. The evidence must not be cumulative, that is, it must not be evidence of the same character, and on the same point, as was introduced on the first trial, however insufficient that was. And the application must be made within a reasonable time. If the plaintiff is entitled to come into this Court at all with such a case, for which I see no precedent or authority, I suppose he must come in on the same condition, and stánd on the same ground, with a party who was applying to this Court for rehearing of its own judgment, on the ground of newly discovered testimony. One of these conditions, viz: that of applying by petition to the Court for leave to institute such a proceeding, it seems to me would hardly apply. At least I do not perceive clearly how it would apply. But all the other conditions would apply, and would be exacted if the case were to be entertained here. But the plaintiff in this instance has not disclosed the name of his witness; nor that he could be able to procure his testimony, nor what that testimony would be if it were obtainable. How could the Court pronounce whether the alleged newly discovered evidence would substantially vary the case made on the trial already made.
    Another condition is, that the alleged newly discovered evidence must not be cumulative. When the evidence is not stated, how is the Court to judge if it be not cumulative.. Stated in the general manner in which it has been, it does appear very much of the same character and complexion with some of the evidence actually heard on the former trial. The general manner in which the plaintiff has stated the alleged newly discovered evidence I have already shewn. In his fourth ground of appeal from the verdict of the jury, he says: “it was clear from the proof that the plaintiff had caused and procured gold filiugs and gold ore to be placed on the land, and cause the same to be extracted and exhibited to the defendant (the plaintiff here) and others, inducing certain belief that a rich gold mine existed on said land. The verdict of the jury, allowing him the full benefit of the said fraud, is contrary to law.” Now the evidence which he says in this ground of appeal the jury has disregarded, is the evidence which he now alleges that he has recently discovered; it is of the same tenor and import; it is\cumulative. And if compared with and judged by the report of O’Neal], Justice, the same conclusion arises, that is, that the evidence that the plaintiff designates as newly discovered, is similar to, and of the same character with, that which he now seeks to make the ground work for another trial.
    The plaintiff, in this bill, alleges that the defendant, within a short time after the perpetration of the fraud, left the State, and has never returned, except for a brief visit, of which the plaintiff was ignorant until the defendant had again departed, so that he, the plaintiff, had no opportunity of filing a bill of discovery against him, for the purpose of compelling him to discover the fraud which he had committed against him. I do not perceive the force of this reasoning. I am unable to see any good reason why plaintiff in this bill might not at any time during the pendency of the action at law upon the sealed notp, have filed a bill of injunction and discovery against the defendant, {plaintiff in said action at lav*,) upon which, the suit at law would have been enjoined, and a discovery in that way compelled, though the plaintiff in that action could not be reached by process. For certainly this Court would not permit an absent party to prosecute ah inequitable demand by an action at law, thus abusing the machinery of our State jurisdiction for the prevention of justice, if a discovery is necessary to a successful defence, and is sought in a proper manner. This the defendant has not done. He has thus lost the advantage of a discovery from the defendant in this suit. And I think that he has no right to call upon this Court to aid him, and to afford him a remedy for his own laches.
    I have said that under certain very stringent rules, the Courts of Law and of Equity, each recognizes the discovery of new evidence as a sufficient ground for a new trial. But one of the primary rules regulating this practice is, that the application for a new trial must be made before the jurisdiction that directed the former trial. Footner vs. Figes, 2 Sim. 319; Ex parte Baker, 1 Cox 481. Such has been the uniform practice of our Courts.
    The mode of procedure in equity I have already indicated. In the Law Court, the application is made on motion, supported by affidavit of the newly found witness, setting forth the facts, shewing that they are material, not cumulative, &c. The principles upon which a new trial is ordered, are very similar in both Courts; except that in the Court of Common Pleas, no new trial will be granted on the ground of newly discovered parol evidence. Fabers vs. Baldrich, 3 Brev. 350; Eifert vs. Descoudres, 1 Mill 99; Ex’ors of Evans vs. Rogers, 2 N. & McC. 563; Price vs. Jenkins, 1 N. & McC. 155.
    As to the time, within which the motion must be made in a Court of Law, the practice does not seem to be very clear. Generally, motions for a new trial on the ground of misdirection, or misconduct on the part of the jury, the verdict being against the evidence, &c., must be made immediately after the trial, and in our practice, they go before the Court of Appeals at its next term. Motions for a new trial on the ground of newly discovered testimony, generally take the same course. But in the King vs. Gough it was decided that a new trial may be granted at any time before judgment is signed, 2 Doug. 1791. And in sundry English cases, which I have examined, the question of granting a new trial on the ground of newly discovered testimony, was decided irrespectively of time. In Harrison’s Digest, 2 vol. p. 1531, a case is cited for the following rule; that it is never too late to move for a new trial on a discovery of new facts, if it be done in a reasonable time.
    I am not prepared to say, that the plaintiff would be too late in this applicatioú, if a proper case had been presented for the interposition of the Court, and if it had been presented before the proper tribunal and in a proper manner.
    
      But I am of opinion, that tried by the rules which regulate the practice of either Court on this subject, the plaintiff's case must fail.
    It is to be remarked, that the plaintiff does not call this an application for a new trial, though it is such, to every intent and purpose. It does not purport on its face to be an application for a new trial, though the former trial and recovery are very particularly set forth. By a liberal interpretation, it' might be considered as of that character. It is only in that aspect that it is worthy of any serious consideration, or of the trouble and research that I have bestowed upon it. In any other point of view, it would be an absurdity to say, that the former trial was not conclusive upon the plaintiff. And though I strongly suspect that the defendant has perpetrated a nefarious fraud, it is the plaintiff’s misfortune to have suffered a wrong, fpr which the Court cannot afford him a remedy It is the common misfortune of a party, who, having justice on his side, is without the good fortune of having witnesses at the proper and critical time to support him in his just claims.
    It is ordered and decreed, that the bill be dismissed.
    The plaintiff appealed and moved this Court to reverse the decree on the grounds:
    1. Because according to the facts and circumstances set forth in the complainant’s bill, not being denied by the answer 'of defendant, or traversed by the plea in bar, the plaintiff was entitled to a perpetual injunction according to the prayer of his bill.
    
      2. Because the Chancellor erred in holding that the injunction granted by the commissioner, could be dissolved before answer filed by the defendant.
    McMiley, for appellant.
    
      Hemphill, Gaston, contra.
   The opinion of the Court was delivered by

Johnston, Ch.

If there is any virtue in the doctrine that the adjudication of a matter by a competent Court is a barto the stirring the same subject in a.different forum, the bill in this case has been properly disposed of; nor is it deemed necessary to add anything to the observations of the Chancellor.

It is argued for the appellant, however, that he was by the frame of his bill entitled to an account for, and repayment of, the monies paid by him in cash, and of course not covered by the plea put in, in relation to the note, nor excluded by the trial at law.

It is far from clear that the frame of his bill is such as to entitle him to an investigation of this matter; nor is it quite sure that he might not have obtained a remedy at law for this money, by way of discount. Be these matters as they may, his appeal, which merely claims an injunction of the suit at law, is not sufficient to raise the question argued.

It is ordered, that the appeal be dismissed, and the decree affirmed.

Dunkin and Warddaw, CC., concurred.

Decree affirmed. 
      
      
         2 Hill, Ch. 214.
     