Peterson against Barry

[Philadelphia, Monday, July 13, 1812.] Peterson against Barry. New trial granted, the plaintiff having been surprised by evidence of a payment, sworn to at the trial by two witnesses, who, there was strong reason to believe, had been tampered with. . This was an action of assumpsit for goods sold and delivered, &c., tried before Brackenridge J. at a Nisi Prius in March last, when the jury found a verdict for the plaintiff with 478 dollars 19 cents damages. Levy for the plaintiff now moved for a new trial upon an affidavit, stating that the jury had found too little for him by 500 dollars and the interest; and that the plaintiff had been surprised at the1 trial by an allegation that the defendant had paid him a check for 500 dollars on the Farmers and Mechanics’ Bank, which was sworn to by two witnesses, who were perjured. The affidavit proceeded to deny the payment most explicitly. By the report of his Honor, it appeared that these witnesses swore that in May 1811, Barry sent them to the plaintiff with a letter containing a check on the Farmers and Mechanics’ Bank for 500 dollars. They both read the check and the letter containing it, and they delivered the letter to the plaintiff who took the check out of it, and said it was well. The circumstances of time and place of delivering the letter were very particularly sworn to; and a cancelled check corresponding with the evidence, and drawn in favor of Peterson, was produced by the defendant. Several persons were examined upon the motion, who contradicted the witnesses in some material circumstances, and laid a for in addition to which, were shown to be extremely low men, not likely to be entrusted with such a message, if it had not been a collusive one. But the strongest evidence was that of a witness by the name of Wright, who swore, that on the 9th of May 1811, the day the check bore date, the defendant called to pay him a debt; that the witness received from him 200 dollars in 100 dollar notes of the Farmers and Mechanics’ Bank, and immediately afterwards 400 dollars in the same notes from the defendant’s mother-in-law, to whom he had handed them. Barry told him he had just received the money from the bank, and that he had but twenty dollars in the world. The bank account of the defendant was then shown, by which it appeared, that on the 4th of May he had deposited to his credit in that bank 620 dollars. That on the 9th of May he drew out 100 dollars by a check in favor of the witness last referred to, 500 dollars by a check in favor of Peterson, and the remaining 20 dollars were drawn on the 15 th by a check payable to bearer. This was the only account that Barry had with that bank in 1811. Phillips for the defendant, contended that there was no ground for a new trial, because in the first place there was no surprise, the pleas being non-assumpsit and payment, and actual notice having been given of an intention to prove the payment in question, although the mode of proof had not been mentioned ; secondly, because the character of the witnesses for veracity had not -been impeached; and thirdly, because the plaintiff had discovered no new evidence, but relied on vague suspicion only. Levy cited Fabrilius v. Cock, 3 Burr. 1771, and was then stopped by the Court. [MAJORITY — Per Curiam.] Per Curiam. This is a case of an extraordinary nature, in which the character of both parties is very much concerned. The circumstances proved to day are material. The defendant paid Wright six hundred dollars in six notes for one hundred dollars each, of the Farmers and Mechanics’ Bank. This sum, with twenty dollars drawn by the defendant afterwards from that bank, made six hundred and twenty, the whole of his credit in the bank. We wish to know from ^whence these six hundred dollars came, and the defendant will have an opportunity of showing this on another trial. On the whole we are of opinion that the case requires further explanation, and therefore that there should be a new trial. New trial granted. [Cited in 1 Clark, 456; 1 Phila. 281.]