Opinion
(June Term, 1839.)
When the depositions of the witnesses in an equity suit, transmitted to the Supreme Court for hearing, are in such direct conflict with each other that it is evident perjury has been committed, but the Court cannot tell on which side the guilt lies, it will direct feigned issues to be made up and tried in the Superior Court, where the witnesses may be personally examined in open court, instead of impaneling a jury before it, the Supreme Court, under the special authority conferred upon it for that purpose, where such personal examination cannot be had.
The Court is wholly unable to satisfy itself, upon the proofs which have been taken in this cause, as to the truth of the matters of fact therein put in issue. Witnesses are in direct conflict with each other, so that there is certainly perjury on one side or the other, and the Court cannot tell on which side this guilt lies. To satisfy its conscience, it is obliged to call in the aid of a jury; but before a jury impaneled in this Court, under the special authority which the law has conferred for summoning such a jury, the witnesses cannot be personally examined. Such a jury, therefore, would have no further means of testing the credit of the witnesses than is possessed by the Court. (280) Under these circumstances, the Court deems it proper to direct feigned issues to be made up and tried in the Superior Court of law for the county of Wilkes, to ascertain, first, whether a certain bond for the sum of $395, or thereabouts, executed on or about 25 September, 1829, by the defendants William B. Dula and David E. Horton, payable twelve months after date of William Dula, Sr., and John Witherspoon, administrators of Thomas Dula, deceased, was destroyed by the said William Dula, Sr., in his lifetime; secondly, whether the said bond was executed by the defendants upon an engagement of the said William Dula, Sr., that he would settle the same in account with his intestate's estate, and the said defendant should not be required to pay the same; and, thirdly, did the said William Dula, Sr., in his lifetime, account for the said bond in settlement with his coadministrator, as being paid off by him. The decretal order will particularly specify the manner of trial of said issues.