21 N.C. 108 | N.C. | 1835
At this term the plaintiff filed a petition, in which he stated that, since the rendition of the decree, he had been informed by one Jesse Williams that the defendant had admitted the right of the plaintiff to the slave during the pendency of the suit; and also by one Nancy Covington, that she knew that the birth of the slave took place before the death of the testator. The petition was verified by the oath of the plaintiff, and he swore that the testimony was unknown to him when the cause was set for hearing, and that during the pendency of the suit he had been informed by his counsel that he had sufficiently proved the time of the slave's birth by the deposition of his mother, Mary Love.
The prayer was for liberty to file a bill of review for newly discovered testimony. The affidavits of Williams and of Mrs. Covington were filed with the petition. Williams swore that, in a conversation with Blewitt, the latter, speaking of the suit then pending and about to be heard, said that it was exceedingly hard for him to have to pay for the slave, and that it was his expectation that he would have to do so; that he (109) knew the negro was the petitioner's, and expected to have to pay for her.
Mrs. Covington stated in her affidavits that she was intimate in the family of the testator during his lifetime, being the sister of his wife, and that the slave in question was born before his death. Both the affiants were uneducated persons, and made their marks instead of fixing their signatures to their respective affidavits. It is a question of no little difficulty whether, on account of the peculiar constitution of this Court, any decree here rendered can be reexamined by bill of review because of new matter or evidence, discovered since the rendition of the decree. This question is not intended now to be decided, and it is mentioned lest an inference should be hastily drawn that the Court has either overlooked the difficulty or has overruled it. If a sufficient prima facie ground had been laid in these affidavits for granting the prayer of the petitioner, *91 we should forbear to act upon the subject-matter of it until notice of the petition had been given to the defendant and an opportunity afforded him of being heard against the application. Such a petition is addressed to the sound discretion of the Court, and for the proper exercise of that discretion it is essential that the parties interested should have an opportunity afforded of bringing forward what they may respectively be advised to be material.
But there is not a sufficient prima facie ground laid. It is impossible to infer more from the conversation which Williams declares himself to have had with Blewitt than the latter then supposed that Love had proved the fact of Anaka's birth at the alleged time, and that the consequence of this proof would be a recovery against him, hard and oppressive as such a recovery would be. In Blewitt's answer he declares that, when he administered, in 1793, on William Love's estate, (110) he believed Anaka born after his death; that she was taken possession of by the widow, Mary Love, and continually kept by her upon that ground, and that he never heard any intimation to the contrary until the year 1818, many years after he had closed his administration (when he was so informed by the plaintiff, the present petitioner), and that he did not then, nor at the time of putting in his answer (1823), believe the plaintiff's allegation to be true. Since that answer, and before the alleged conversation, the deposition of the petitioner's mother was taken and publication passed, in which deposition, without referring to any dates or giving any explanation, after having taken and kept the negro, upon the ground of its being born since the death of her husband, she simply swore that it was born before his death and after the making of his will. We must, therefore, understand this saying of the defendant, as indicating the apprehension which this deposition had excited, that the fact would be considered as established by proof, and would be decisive of the plaintiff's right to recover. It would be worse than idle to regard it as overruling and contradicting the statement made by him on oath, as to his belief when he entered upon, and while he was engaged in, the management of his testator's estate.
The only evidence set forth in support of this application which can be deemed material is that of the affiant Nancy Covington; and if the petition is to be granted, it must be for the purpose of affording to the plaintiff an opportunity on a bill of review to have the testimony of this witness taken to corroborate the deposition of Mary Love.
We deem it unnecessary to say more than that, according to the well-established rules of equity, we do not feel ourselves justified in granting the application on this ground. The new witness sought to be introduced is the sister of the petitioner's mother, and there is no allegation that her testimony might not easily and readily have been obtained *92 (111) before the former hearing. That the plaintiff or his counsel thought it safe to risk that hearing and the decision of the cause altogether upon the vague, unsatisfactory testimony of the plaintiff's mother — testimony the object of which was to render the defendant liable to the plaintiff for his negro, which she held, and for which, therefore, in conscience, she, and not the defendant, should have been accountable — is the fault or misfortune of the plaintiff or of his counsel. This is not newly discovered evidence; and if it were, it is only cumulative evidence to a litigated fact. These considerations, without going further, appear to us decisive against the application. See Young v.Keigley, 16 Ves., 348; Norris v. Le Neve, 3 Atk., 37; Taylor v. Sharp, 3 P. Wms., 371; Livingston v. Hubbs, 3 Johns. Ch. Reps., 126.
The prayer of the petition is denied.
PER CURIAM. Petition dismissed.
Cited: Matthews v. Joyce,
