#### *Ex parte Jacques Louis Dominique Vandersmissen and Louisa Catharina*Colleton, *his wife.*

Petition for leave to file a bill of review. The petitioners were defendants to tke original bill, and were residents of a foreign country. A certain deed, written in the French language, on parchment, folded, but not endorsed, was sent by them, with other papers, to their counsel in this State. This deed, which was most material to the claim of the petitioners, was overlooked by their counsel, and not discovered until after the appeal decree in the original cause was *delivered:*— Ordered, that petitioners have leave to file a bill of review.

“ New proof, that is come to light after tho decree was made,33 is ground for granting leave to file a bill of review.

The petition in this case, which was filed December 30,1828, in the Circuit Court for Charleston, states, “ that about the first day of June, 1824, a bill was filed in this honorable Court, by the firm of Davidson & Simpson, of London, merchants, against Admiral Richard Graves, the father of your petitioner, Louisa Catharina, and against your petitioners, and the other children of the said Richard Graves, and their husbands or representatives therein named, the object of which bill was to set aside certain deeds made by the said Richard Graves and wife, and by his son, Samuel Colleton Graves, and to have the estates thereby settled sold, and the proceeds applied to the payment of a large sum, to wit, the sum of £9,662 11 4, said to be due to the complainants by the said Richard Graves, and Samuel Colleton Graves, his son. Your petitioners further shew unto your Honors, that although process was by the said bill prayed against your petitioners, they were at that time absent from this State, and no process was ever served upon them; but the father of your petitioner, Louisa Catharina Colleton, was at that time in this State, and put in an answer for them, which your petitioners are advised and allege to have been an irregular *520and unauthorized act, and not sanctioned by the rules of this Court; that the said bill of complaint of Davidson & Simpson set forth, amongst other things, that the said Richard Graves and Louisa Carolina, his wife, (the said Richard Graves being then greatly indebted,) by deed bearing date 17th June, 1817, granted to your petitioners, as a marriage portion, so much of their real property in South-Carolina, called Colleton and Fair-lawn Baronies, as should be valued at £3,000 sterling, and so many of their negro slaves in said State as should be valued at £3,000 sterling more. Your petitioners further shew unto your Honors that the said Richard Graves, by the answers so put in for himself and for your petitioners, admitted the statement made in the said complainant’s bill, as to the deeds under which your petitioners were supposed to claim, and, without further defence, submitted the consideration of their rights to the judgment of the Court; that, at the hearing of the cause, the deed bearing date the 17th June, 1817, was produced, and that, upon a final decree in the Court of Appeals, (a) it was declared that the grant of the £3,000 sterling charged upon the personal estate of the said Richard Graves, by the said deed, was void, because the said deed was a settlement after marriage, and therefore voluntary. Your petitioners further shew unto your Honors that the majority of the learned Judges of the said Appeal Court dwelt and insisted much on the circumstance that there was no agreement prior to the marriage of your petitioners to support the said settlement, and on that ground alone determined against your petitioners’ right as to the £3,000 sterling charged on the negro slaves of the said Richard Graves ; but your petitioners in fact say, that they have been greatly and grievously injured by these said proceedings: for the said Richard Graves and Louisa Carolina, his wife, previous to the marriage of your petitioners,, entered into a solemn agreement with your petitioners, for the settlement of £6,000 sterling, with interest at 5 per cent, per annum, charged on all their lands *521and negroes in South-Carolina, to the uses of the said marriage, and the same was put into writing and signed by the said Richard Graves and wife, and Samuel Colleton Graves, and your petitioners, and was executed and delivered at Anvers, in the kingdom of the Netherlands, on the fourth of September, one thousand eight hundred and sixteen. And your petitioners, in fact, say, that the said agreement was an essential condition in the treaty of the said marriage, which was afterwards duly had and solemnized, on the second of October, one thousand eight hundred and sixteen; that, by the said marriage contract, in consideration of the said intended marriage, the said Richard Graves and wife agreed to settle and assure to your petitioners the sum of six thousand pounds sterling, with interest at 5 peí-cent., to be charged on all their estates in South-Carolina, as in and by the said instrument of writing, in the hands of your petitioners’ counsel, and ready to be produced, will more fully appear. Your petitioners further shew unto your Honors, that when the said decree was pronounced against them, the said marriage contract was not brought to the view of the Court, and that the evidence furnished thereby would have entirely altered and changed the said decree in this particular. Your petitioners admit that they are not entitled to say that the instrument of writing hereinbefore mentioned is, as to themselves, newly discovered evidence, but they submit to your Honors a case of still greater hardship, inasmuch as the said evidence, although furnished to their agents and attornies, was not discovered nor understood until after the hearing and deciding of the said case by the said Court of Appeals ; that, owing to the absence of both your petitioners, (who are residents in the kingdom of the Netherlands,) and the little knowledge which your petitioner, Vandersmissen, hath of the English law or language, your petitioners were able to do little more than transmit to, and place in the hands of, their agents and attor-nies in this country, their deeds and muniments. That a notarial and authenticated copy of their said marriage contract, in the French language, was amongst the number, and was *522handed over, as they understand, by their agent, Mr. William Robertson, to Mr. Prioleau, the solicitor of the said Richard Graves, amongst other papers, to be used by him in your petitioners’ defence, but was never examined by either of them, nor was the existence of the said contract known to either of them, nor to any person in this country. That when the said answer was put in for them by the said Richard Graves, he took the statement of the complainants’ own bill, and submitted their rights, without explanation, to the judgment of the Court, and your petitioners’ case was heard in their absence, under the suppression of the most important evidence. Your petitioners further show, that when they were informed of the hearing of the case, and a copy of the decree of the said Appeal Court was sent to them, they were greatly astonished and surprised to find that stated in the evidence which they knew not to be in the facts of the case, a"nd seeing that the honorable Court set aside their lien of £3,000, charged upon the negroes, merely because there was no ante-nuptial contract of that nature, your petitioners immediately wrote to their agent, and to the counsel employed by him, and directed them to search for the marriage contract hereinbefore mentioned ; that in making such search, the said authenticated copy of the said contract was found amongst the papers of Mr. Prioleau, who had been employed to defend their case. Your petitioners well hoped that the complainants in the said case would not insist on a decree founded in mistake, and would willingly yield them the rights to which they are so clearly and justly entitled; but your petitioners are informed that, as a decree has been pronounced, no errors can be corrected without an application to this honorable Court. Your petitioners therefore pray that they may be allowed to take off the file the answer so put in irregularly in their name, and that they may be allowed to prove the marriage contract hereinbefore mentioned, and that the cause may be re-heard, and the rights of your petitioners properly submitted to this honorable Court; or that they may be per*523mitted to file a bill of review, for the redress of the errors and grievances hereinbefore stated.”(b)

*524The Chancellor sitting in the Circuit Court for Charleston, before whom the petition was heard, refused the prayer thereof; and the petitioners appealed.

*Dunkin,*Petigru, for petitioners.

King, contra.

(a)

**See the decree, Riley Ch. 232.

(b)

 The following affidavits were relied on, to sustain the petition, and were filed therewith:

“Personally appeared william Robertson, who, being duly sworn, deposeth that he has acted as attorney for Admiral Richard Graves for the last thirty years; that in June or July, 1824, he went with the said Richard Graves to Samuel Prioleau, Esq., to employ him to put in an answer in Equity, and to act as his counsel, in the case of Davidson *&*Simpson against the said Richard Graves and others, about that time commenced, by bill filed in the Court of Equity of this State. That, to the best of his knowledge and reeollection, Baron J. L. D. Vandersmissen, son-in-law of the said Richard Graves, was not at that time in this country, and did not arrive here until November or December of that year, (1824,) when he came here with his wife and the said Richard Graves, who had returned, as this deponent believes, to Europe, in or about July, 1824. That the said J. L. D. Vandersmissen and wife, by power of attorney, executed on 8th April, 1825, appointed this deponent and Samuel Prioleau, Esq., to act as his attornies in this country; that he does not recollect having received any marriage contract, or copy of a marriage contraot, of the said Vandersmissen and wife, from either the said Richard Graves or the said Vandersmissen, nor has he ever seen such marriage contract, or copy thereof, until after the decree of tho Appeal Court in February last, in the said case of Davidson & Simpson against Richard Graves and others, when, upon sending a copy of the said Appeal decree to the said Vandersmissen, (then in Brussels,) he received an answer from him, referring to a copy, in the French language, of a marriage contract, executed previous to his marriage, which he states that he left in the possession of this deponent; that this deponent thereupon made search amongst his papers, but could find no such paper or contract; that he then called upon Messrs. Dawson & Cruger, (who had acted as attornies for Vandersmissen since the retirement of Mr. Prioleau from practice,) to request them to search amongst the papers of Mr. Prioloau for such paper or contract; that they informed him they had just received letters from said Vandersmissen, referring to said contract, and stating that a copy thereof had been left with this deponent; that Mr. L. Cruger, upon searching, found a copy of said contract amongst the papers of Mr. Prioleau, which this deponent thinks must have been left with Mr. Prioleau, amongst other papers, by said Vandersmissen, for this'deponent, on his oath, avers that he never before, to the best of his recollection, saw the said copy, or any other copy, of the said marriage contract, which he found, upon examination, to be a notarial copy of a marriage contract, entered into at Anvers, (or Antwerp,) on the 4th September, 1816, between Admiral Graves and wife, and the said Vandersmissen and wife, and Samuel Colleton Graves, for the purpose of settling £6,000 sterling upon the said Vandersmissen and wife, and binding the property of the said Admiral Graves, in South-Carolina, for the payment of the same.”

“ Personally appeared Lawrence E. Dawson, who, being duly sworn, deposoth that he was utterly ignorant of the existence of any contract of marriage between Richard Graves and wife and J. L. D. Vandersmissen and wife, (forwhom this deponent, together with his partner, Mr. L. Cruger, have acted as attornies and solicitors,) entered into *524before the marriage of the said Vandersmissen and wife, until after the decision of the case by the Court of Appeals, and until letters wore received from said Vandersmissen, subsequently thereto, referring to such marriage settlement, and stating that a copy of the same had been left with Mr. fm. Robertson: when, upon Mr. Robertson’s stating that he could not find such paper, a search was made among the papers pf Mr. Prioleau, by Mr. L. Cruger, and a paper in the French language was found by him, which is said to be a notarial copy of a marriage contract, enterod into between Admiral Graves and wife and said Vandersmissen and wife, and dated at Anvers, on the 4th September, 1816; but of the existence of said contract or document this deponent was utterly ignorant, nor does he recollect to have ever seen the same, until after the decree of the Appeal Court.”

“ Personally appeared Lewis Cruger, who, boing duly sworn, deposeth that, on the retirement of Samuel Prioleau, Esq. from the practice of the Law, he was, together with his partner, Mr. Lawrence E. Dawson, requested by Mr. Prioleau and Mr. william Robertson, attornies of J. L. D. Vandersmissen, to attend to Ms defence, in the ease of Davidson & Simpson against Admiral Graves and others, in Equity; that this was about the summer or fall of 1825; that the case was then docketed, and he understood from Mr. Prioleau and Mr. Robertson that Mr. Petigru and Mr. Dunkin were also engaged to act with them for said Vandersmissen and for Admiral Graves; that, as an answer was put in by Mr. Prioleau for said Vandersmissen, and as the deeds therein referred to were all ready to be produced in Court, and none others were mentioned or set forth, they never supposed that any others existed, of importance to said Vandersmissen, and therefore were never put on the search for any others, until after the decision of the said case by the Court of Appeals, in February last, when, upon sending a copy of said decision to said Vandersmissen, (then in Brussels,) theyreceived letters from said Vandersmissen and his wife, referring them to a marriage contract entered into betwoen Admiral Graves and wife and themselves, previous to their marriago, and dated on the 4th September, 1816, at Anvers, (or Antwerp,) in the Netherlands, an authenticated copy of which, they stated, had been left by said Vandersmissen in the hands of William Robertson, Esq., of this city; that this deponent spoke to Mr. Robertson on the subject, when he assured this deponent that he had searched, and could find no such paper, and that, to the best of his recollection, he had never seen such paper; this deponent then, at Ms request, searched amongst the papers of Mr. Prioleau, and found a paper or parchment document, written in the French language, (wMch this deponent does not read,) and upon showing the same to Mr. Robertson and Mr. Petigru, they declared it to be a notarial copy of a marriage contract, such as is above referred to. This deponont further saith, that he never, until that time, knew of the existence of such document or contract.”

*525In March, 1829, the appeal was heard in Charleston, and the judgment of the Court announced as follows:

Colcock, J.

The Court are decidedly and unanimously of

opinion that the motion in this case should be granted. But, as this is the first case in which this Court has granted an application for a bill of review, and will, of course, be referred to as a precedent, it is deemed important that our reasons should be more fully stated than can now be done. The opinion will therefore be sent to the Clerk of this Court, and, in the mean time, the petitioners are permitted to proceed ; if, indeed, any proceedings should be deemed necessary, after this determination is known.

Nott and Johnson, JJ., concurred.

At d subsequent day, the following opinion, stating the reasons of the Court, was filed with the Clerk :

Colcock, J.

The questions which arise in this case are of the first importance in the administration of the Chancery jurisdiction of the State. After much discussion, our ancestors thought proper to establish this jurisdiction, and there has been a continued effort, on the part of pur legislators, to correct, as much as possible, both the abuse í of power exercised by those Courts, and the delays which hávp arisen from the mode of conducting the business in them. Believing, as we do, that such a jurisdiction is essentially necessary to the complete and perfect administration of justice, we have endeavored to cooperate with the Legislature, to restrain within its proper limits this jurisdiction, and so to regulate the practice as to procure the most speedy determination of cases, which is consistent with their mixed, diversified, and oftentimes complex character. In' England, a Chancery suit is the business of a lifetime, and not unfrequently descends, with the property, to the second or third generation. In order to prevent this delay here, the right of appeal is given to a tribunal which sits twice a year, as in the ordinary cases of the Law Courts, the decision of which is final and conclusive of the subject — and hence it has been ar*526gued that no other re-hearing of a case should be granted in this State.

That it was the intention of the Legislature to prevent the delay resulting from the circuitous course of proceeding in England cannot be doubted, but that they intended to preclude the granting of bills of review, under any circumstances, will not be conceded. In words, they have not done so, and it would be improper to imply such intention, in opposition to the essential benefit resulting from a judicious exercise of the power; nay, I may say, from the absolute necessity of its existence. In the case of *Haskell*and Raoul, (1 McC. Ch. 22,) although we rejected the application, yet the Court say : “ We are not to be understood as saying that a bill of review, for newly discovered evidence, (subject to all the conditions and regulations prescribed on those occasions,) may not be granted.” We are then to decide whether the present applicants have brought themselves within the reasons and the rules on which such applications have been granted. The case itself, out of which this application has arisen, was one of much importance, both as to the amount of property and the principles involved in it. From the situation of the parties, (most of them being resident abroad,) and the complex nature of their demands, depending, not only on evidence to be obtained in the country in which they lived, but on the construction of deeds drawn and executed according to the forms of other countries, the difficulty in the decision of it was also greatly increased. In this state of things, and in the absence of the applicants, the cause was heard, and an important paper, on which the claim of the applicants (according to the opinion of a majority of the Court) depended, and which was in the possession of one of the former counsel, was not produced at the hearing. On the part of the applicants, it is contended that this was not their fault; that there was no negligence on their part; that their claim is just, legal and equitable ; that, although they may not come within the very letter of Lord Bacon’s rules, they are clearly within the spirit and meaning of them. On the other *527hand, it is said to be the ordinary case of negligence, where the guilty party sacrifices his private right to the operation of a rule, indispensably necessary to the common good ; that, where one has evidence which he will not, or does not, produce at the trial, he is not entitled to a re-hearing.

We would reluctantly depart from a rule, the wisdom of which is admitted on all hands, and one which we have so often practically applied ourselves. But *qui hceret in*litera, *hccret in*cortice, is a maxim which must never be forgotten by those who administer equity.

How difficult is it so to express any rule, as not to exclude cases which are evidently (upon the mere statement of them) within its spirit. The facts in this' case are, that the papers were all sent to the counsel formerly engaged in this case. The deed in question was written in the French language', on parchment, folded but not endorsed. The attorney, who very laboriously and with great technical precision made out the abstract of the deeds on which .the claim depended, overlooked this deed, and it was not discovered that it was a paper having any relation to the case, until after the decision. The rule laid down by Lord Bacon is in the following words: “No decree shall be reversed, altered or explained, being once under the great seal, but upon-, bill of review; and no bill of review shall be admitted, except it contain either error in law, appearing in the body of the decree, without farther examination of matter in fact, or some new matter, which hath arisen in time after the decree, and not any new proof, which might have been used when the decree was made; nevertheless, upon new proof that is come to light after the decree was made, which could not possibly have been used at the time when the decree passed, a bill of review may be grounded, by the special license of the Court, and not otherwisewhich ordinance, it is said by Lord Hardwicke, (3 Atk. 26,) has never been departed from. Now, whether we take 'the words of Lord Bacon, or those, of the expositors who followed him, I think the case before us is embraced in the rule, “ nevertheless, upon *new**528proof, that is come to light after the decree was made,” &c. Now, I take it, that the word “ new ” may as much apply to the discovery of the proof as to its existence: for *de non appa rentibus, et non existentihus eadem est ratio.*Although the proof might exist, yet, if not produced it could not be acted upon ; and the learned Chancellor could not have intended, in laying down a general rule, to exclude a case which, in effect, is precisely that stated in the rule : and this seems to have been the idea of that great man, Lord Hardwicke, for he says, “it must appear that the new matter has come materially and substantially to the knowledge of the party, or his agents, which is the same thing, since the time of the decree in the former cause, or since such time as he could have used it to his benefit and advantage in the former cause.” Coop. Plead. 91; 1 Ves. sen. 434.

Now, it is very clear that the proof in this case came to the knowledge1 of the agent after the decree, and if the meaning is, new as to discovery, which I think is clear, the case before us is within the letter of the rule. It is true that the ordinance does say, “ or some new matter which hath arisen in time after the decree, and not any new proof which might have been used when the decree was madebut T confess I cannot see how any circumstances, which could arise after a decree, could bé made the ground of a review. I think this language is obscure, and must be considered as qualified and explained by that which immediately follows, and which I have referred to : “ Nevertheless, upon new proof that is come to light after the decree was made,” <fcc.

But, if it be conceded that, by the rule, a review can be granted on “ some new matter which hath arisen after the decree,” yet I think it must also be granted, that it can be obtained “ upon new proof that is come to light after the decree,” which is the case before us — and for this abundant authority can be produced, independent of the rule itself. In the case of *Patterson*vs. Slaughter, Amb. 293, Lord Hardwicke says, “all the bills of review I have ever known, were of new matter, to *529prove what was put in issue. Lord Effingham’s case was so. He claimed under an old entail, and though he afterwards made title under a different entail, yet the issue was as claiming under some old entail generally. In the present case, it is not new matter to prove what was put in issue, but to prove a title that was not in issue : and therefore the defendant could not be entitled to a bill of review.”

So, in the case of *Taylor*vs. *Sharp,*(3 P. Wms. 372,) the Chancellor says, “ the remedy by bill of review must be either,” &c., “or upon some new matter, as. a *release,*receipt, &c., proved to have been discovered sinceand in the case of *Standish*vs. *Radley,*2 Atk. 177, it was decided, that *papers,*in the hands of a party to a former cause, though not produced, may be read upon a bill of review, not being discovered until after publication in the cause. (1 Harrison, Ch. Pr. 137, 452.) It is, however, contended, that this paper being in the possession of the former attorney, cannot be said to be newly discovered testimony, for that it was his duty to have examined it, and ascertained its contents. But I think neither the rule, nor the reason of the rule, go so far. A man may have possession of a paper,-and not know it, and the affidavits are satisfactory to that point. In the most guarded exercise of the power of reviewing cases, it is only necessary to ascertain that no imposition is attempted to be practiced on the Court, as to the knowledge of the existence of the evidence offered. If the paper was not examined, (or was not seen, being among others not thought to be important,) it is a case of newly discovered evidence. It is perhaps difficult to tell how it was overlooked. It is often impossible for one to tell how he loses a paper : for if he had known the when and the how, it would not have been lost. It is a case, as I conceive too, differing widely from those cases which speak of one, having possession of a paper, not being entitled afterwards to use it. Those are cases, where the person having the possession, also had a full knowledge of its contents, and, through a culpable negligence or forgetfulness, fails to produce it, or is instigated by some motive of interest or gain in another *530way. In this case, there appears to have been all the diligence and attention which could have been required, and more than is ordinarily used, and it is impossible to conceive of any motive which could have induced an intentional withholding of the deed; nor is there the slightest ground to suspect imposition in any way. We are, therefore, unanimously of opinion, that the motion should be granted.

Nott and Johnson, JJ., concurred.

*Motion granted.*