Hewitt v. Lucas , 42 Ill. 296 ( 1866 )

Mr. Justice Lawrence

delivered the opinion of the Court:

This was a bill in chancery, filed by Lucas against Hewitt, as administrator of Jackson Baldwin, deceased, for the purpose of procuring a new trial in an action at law brought by Lucas against Baldwin, and tried at the September Term, 1864. Lucas had placed §1,100 in the hands of Baldwin to indemnify him as security on an injunction bond, with the understanding that the money should be repaid, if Lucas succeeded in the suit. He did succeed, and the suit referred to was brought to recover the money. The defense was payment, and two witnesses, one Ellifritz, and a woman named Nacy Earls, swore to having seen Baldwin pay Lucas money in full settlement. The jury on this evidence found a verdict for the defendant. This bill charges that these witnesses, by the procurement of Baldwin, committed deliberate perjury, and that the means of proving this first came to the complainant’s knowledge after the trial. The Circuit Court, on the evidence in this record, decreed a new trial.

This decree rests chiefly on the testimony of Mary Lester and her mother, Sarah Lester, who swore, that, about the time the suit against Baldwin was commenced, he was at their house and there stated that he owed Lucas a thousand dollars, but never intended to pay him, and that he could hire witnesses to prove he had paid. George Mitchell swears, that he was at the court house at the time of the trial between Lucas and Hewitt, who had been made a party to the suit in place of Baldwin, deceased, and that, in talking with Nacy Earls she patted her basket and said she had it full of greenbacks, and that the squire and the widow said she never should suffer. The witness understood her to refer to Hewitt and to Baldwin’s widow. She subsequently stated to another witness that Julia Baldwin ought to pay her some money,— that she could not afford to lose her time for nothing.

On the other hand, Jeremiah Lester, the husband of Sarah Lester, and two other witnesses, swear they were at the house of Jeremiah at the time to which the testimony of Sarah and Mary Lester must have referred, and they heard Baldwin make no such statements as those attributed to him by Sarah and Mary. It is true, it is possible he may have made such statements, and that they were not heard by the other persons present, but, from what appears in the record as to the manner in which the conversation was conducted, it would seem that the other witnesses had the same opportunities of hearing what he said as Sarah and Mary Lester. Moreover, we are to consider, in weighing this testimony, the extreme improbability that a person, against whom a suit was pending, would state in the presence of half a dozen acquaintances, that he did owe the sum sought to be recovered in the suit, but that he intended to evade payment by bribing witnesses to commit perjury, and thereby himself commit a felony for which the law would send him to the penitentiary. This species of testimony, in regard to statements made in conversations held long before the witness testifies, and to which statements his attention has not been especially directed, is, at best, very unsatisfactory. In this case, the testimony of Sarah and Mary Lester, contradicted as it is, at least negatively, by three other witnesses, and highly improbable in itself, is very far from justifying the interference of a court of chancery for the purpose of setting aside a verdict and judgment at law. We are of opinion, indeed, that it must be wholly laid out of view. There remains then nothing but the boastful and improbable statement sworn to have been made by the witness Kacy Earls, at the time of the trial, that she had her basket full of greenbacks, and that the squire and the widow said she never should suffer. It is only necessary to say of this statement, that it is altogether too loose, vague, and uncertain to be made the basis of a decree. What was really intended by this idle language is .at best but matter of conjecture, and we are not prepared to say the speaker meant she had just committed a crime for which she had been paid her basket full of greenbacks.

The rule is, that a court of chancery will use its power to set-aside a verdict and judgment at law, only where it is made clear that a wrong has been done. The evidence must be very satisfactory. Crafts v. Hall, 3 Scam. 131.

In the case before us, it is not so, and we should be establishing a most dangerous precedent, if we were to hold, that random expressions, used in casual conversations sworn to after a long lapse of time, and improbable in themselves, can be made a sufficient basis for awarding a new trial.

We are of opinion that the decree in this case must be reversed and the cause remanded.

jDecree reversed.