#### Martha Tomlinson and Thomas Tomlinson, Jr., *vs.*Thomas Tomlinson Sr., and others.

*Rehearing.*

Circuit decree set aside by the Circuit Court, and rehearing ordered on newly discovered oral testimony.

BEFORE JOHNSTON, CH., AT CHESTERFIELD, FEBRUARY, 1859.

In this case, it is deemed proper to publish the petition and all the affidavits upon which the case was heard.

The petition is as follows:

The State ox South Carolina.

*To their Honors, the Chancellors of the said Stale:*

The petition of Martha Tomlinson and Thomas Tomlinson, Jr., sheweth that Henry M. Tomlinson, late of Chesterfield district, died intestate on the 1st June, 1855, and administration of his personal estate was granted to your petitioners, who published the usual notice to creditors, and a few days before the expiration of the time limited therein, Thomas Tomlinson, Sr., preferred a claim as holder of a promissory note for <§8,000, signed by W. H. Tomlinson, agent, bearing date July 5th, 1853, payable to the order of the said Henry M. Tomlinson three years after date, and endorsed by him in blank, and required of your petitioners, as administrators of the endorser, payment thereof; that your petitioners had, until then, never known or heard of the existence of any such claim, and from their acquaintance with the business of their intestate, and with the circumstances of all the parties (maker, endorser, and holder,) to said note, were persuaded that the said note and its endorsement were not *53genuine, or not *bona*fide, and constituted no valid claim against the estate of their intestate, and your petitioners, therefore, refused to pay the said claim; that in consequence of the large claims preferred against the estate, particularly by the said Thomas Tomlinson, Sr., and suits at law instituted by many of the creditors, your petitioners filed their bill in your Honorable Court about the 25th day of November, A. D., 1856, against the said Thomas Tomlinson, Sr., and others, creditors and distributees, praying, among other things, that the creditors of the intestate might be restrained, by injunction, from suing at law, and required to prove their demands in this Court, and that the assets might be mar-shalled and the estate settled here; that, by an order made at February Term, 1857, the creditors were called in, and the said Thomas Tomlinson, Sr., among others, presented his aforesaid claim; that, impelled by their conviction aforesaid, your petitioners exerted themselves to the utmost to discover something in relation to this note and its endorsement, the transaction in which it originated, the consideration for making and endorsing of it, the time when, the party from whom, circumstances under which, and consideration for which the said Thomas Tomlinson, Si-., became the holder, but owing to the fact that one of your petitioners is a female, and the other a youth just grown up, and not of age at the death of the said intestate, his father, your petitioners labored under great disadvantages, and were never able to find any person, even among all those, clerks and others, who had been most intimately connected with the intestate and his business, who had ever known or heard of the existence of the said note; that application for information on these subjects was made to the said Thomas Tomlinson, Sr., himself, and also to his son-in-law, Culpepper Wadkins; but the said Thomas Tomlinson, Sr., would not talk on the subject, and seemed studiously to ward off all attempts to get information from him, and the said Culpepper Wadkins either disavowed all knowledge on the subject, or would not disclose that he *54had any knowledge about it; that, under these circumstances, the hearing before the commissioner and before the Circuit Chancellor came on, and your petitioners were necessarily restricted in their resistance to this, as they believe, most unrighteous demand, to a contest about the genuineness of the endorsement and the handwriting of the intestate; that, on this point, the decision of the commissioner and of the Circuit, Court has been rendered against your petitioners, establishing the said claim to the extent of $8,833 22, from which decree your petitioners have brought up their appeal to your Honors, and the same is now pending. Your petitioners further shew, that the intestate and the said W. H. Tomlinson, about the years 1838 to 1843, were partners in mercantile business in the Town of Cheraw; that, after their dissolution, the said William H. Tomlinson continued business as a merchant in his individual name for a short time, and the intestate used to endorse for him; that some short time after the dissolution of their partnership, about the terms of which the said William was dissatisfied, he, the said William, declared to a third person, that he then had the intestate’s blank endorsement, and, if he did not do what was right, he would use it; that, after that time, the said William was constantly engaged in mercantile business, and used many printed blank promissory notes in his business, of a printed date, subsequent to 1839-40; that after the said claim of the said Thomas Tomlinson, Sr., as holder of the said $8,000 note, had been presented, the said W. H. Tom-linson, (the maker, under his style of W. H. Tomlinson, agent,) was asked, on behalf of your petitioners, if he intended to allow the estate of the intestate to pay this amount, to which he replied that he did, and justified himself by reference to the advantage, as he alleged, the intestate had got in their old dissolution; that the said $8,000 note appears, upon inspection, to have been an old printed blank form made before the year 1840, as the printed figures in the date are 183 — ; that after the intestate’s death, at the instigation of *55the said William H. Tomlinson, the said Thomas Tomlin-son, Sr., brought an action of trover against your petitioners to recover some twelve or more negroes, of which the intestate had had possession for twenty-five years, and had raised many of them from birth, with a view, if successful, by the recovery, to indemnify himself and the said Culpepper Wadkins against certain suretyships for the said W. H. Tomlinson to the Wadesborough bank and elsewhere; and after the claim founded upon the said $>8,000 note had been preferred by the said Thomas Tomlinson, Sr., and the intended suit in trover aforesaid was talked of, the said W. H. Tomlinson said, in reply to the enquiry of a third person, that if there should be a recovery in the trover case, payment of the note would not be required. Your petitioners further shew, that the foregoing facts were known to your petitioners, or to their solicitors, before the hearing of the Circuit Court; some of them, however, having been learned only a short time previously; but your petitioners, though their efforts, under the advice of their solicitors, were directed to this very end, were not able to discover any privity between the said W. H. Tomlinson and the said Thomas Tomlinson, Sr., in the acquisition by the latter of the said promissory note, and the possession thereof, by reason whereof the acts and declarations of the said W. H. Tomlinson could effect the rights of the said Thomas Tomlinson, Sr., as the holder of the said promissory note; that after the decree of the Circuit Court had fixed beyond relief, as it was supposed, the liability of your petitioners’ intestate, for the payment of the said note, the said Culpepper Wadkins then disclosed the fact, that long after the death of the said Henry M. Tomlin-son, to wit: in the year 1S56, the said W. H. Tomlinson delivered the said promissory note to the said Thomas Tom-linson, Sr., as an indemnity to him and the said Culpepper Wadkins against their liability aforesaid, as sureties for the said W. H. Tomlinson to the Bank of Wadesborough and elsewhere; that at that time, under those circumstances, *56and for such consideration, the said Thomas Tomlinson, Sr., acquired the possession of the said promissory note. And your petitioners further shew, that since the hearing in the Circuit Court, a verdict has been rendered for the defendants in a suit in the State Courts of North Carolina, brought by the Bank of Wadesborough against the said Thomas Tom-linson, Sr., and the said Culpepper Wadkins, to recover one of the debts, against their liability for which the said deposit of the said promissory note was intended as an indemnity; in which suit, however, a new trial has been granted by the Circuit Court.

Your petitioners now charge the facts to be, that the aforesaid endorsement by the intestate, was made upon a printed blank form, shortly after the dissolution of the partnership between the intestate and the said William H. Tomlinson, and designed, according to some cotemporaneous understanding, to be filled up and used by the said W. H. Tomlinson, for his accommodation in his then existing mercantile business; that after its original purpose had failed, or proved unnecessary, it was wrongfully kept in existence by the said W. H. Tomlinson, without the knowledge or consent of the intestate; that after the lapse of more than ten years, and after the authority to fill it up had, if not by mere lapse of time, at least, by the death of the intestate, been revoked, it was fraudulently filled up and put into circulation by the said W. H. Tomlinson, and that the said Thomas Tomlinson, Sr., if not a wilful and active participator in the fraud, did not acquire the property in the said note and become the holder thereof *bona fide,*and for valuable consideration, but *mala fide,*and under circumstances of gross negligence, to say the least, and by the aid of the testimony of the said Wadkins, discovered since the Circuit hearing and decree, this chain of facts can be established.

Wherefore your petitioners pray that the said cause, so far as respects the question of the validity of the claim and demaud of the said Thomas Tomlinson, Sr., as holder of the *57aforesaid promissory note, against the estate of the said Henry M. Tomlinson, as endorser, may be sent back to ihe Circuit Court to be reheard upon such testimony as your petitioners and the said Thomas Tomlinson, Sr., shall be able to adduce, or else that your petitioners may have leave to file a bill in the nature of a bill of review, that the decree of the said Circuit Court upon the said question and upon the liability of the said estate of the intestate by reason of the said endorsement, may be reviewed and reversed or modified, or that your petitioner may have other suitable relief, &c.

INGLIS & INGLIS,

*Solicitors for Petitioners.*

The State or South Carolina, I *Chesterfield District. j*

Martha Tomlinson and Thomas Tomlinson, Jr., come in person before me and say, on oath, that the facts stated in the foregoing petition are all either known to them personally, or they have been informed of them by others, in whom they have confidence; that so far as those facts are within their own knowledge, they are true, and so far as their knowledge of them has been derived from the information of others, they believe them to be true.

MARTHA TOMLINSON.

Sworn and subscribed before me, this 30th day of April, A. D., 185S. John F. Matheson, *Notary Public.*

CERTIFICATE.

We hereby certify that we have examined the foregoing petition, and are of opinion that the new matter alleged to have been disclosed by Wadkins since the Circuit decree, is relevant and material to the issue, and. if known, would, in *58connection with the other facts stated in the petition, have entitled the petitioners to a decree, or, at least, have made a determination in their favor, very probable.

JOHN A. INGLIS.

A. C. SPAIN.

AFFIDAVITS IN SUPPORT OF PETITION.

The State op South Carolina, *Chesterfield District.*

Before me, K. T. Morgan, the subscribing officer, comes in person, Edmund J. Waddill, and makes oath, that he, deponent, was well acquainted with the late Henry M. Tomlinson, and also is well acquainted with William H. Tomlinson, a surviving brother; that the two brothers were merchants in partnership in Cheraw, from about 1838 to 1843 ; that in the year 1845, (as well as deponent can now remember the date,) after the dissolution of their said partnership, the said William H. Tomlinson, in conversation with this deponent, said that his brother Henry had, in the terms of dissolution, got the advantage of him, (William) but that he had in his possession, his (Henry’s) blank endorsement, and if he (Henry) did not do what was right, or as he had promised, he (William) would use the said blank endorsement; that after the death of Henry M. Tomlinson, when Thomas Tomlinson, Sr., the father of the two, had preferred against the estate of the said Henry, his claim as endorsee of the $8,000 note, purporting to be made by W. H. Tomlinson, Agent, in favor of said Henry, aud endorsed by the latter in blank, and when there was a rumor of the intended suit in trover, which was after-wards brought by the father against the administrators of Henry, to recover some twelve or more negroes which were in Henry’s possession at his death, deponent asked William H. Tomlinson, if the negroes should be recovered by the father, whether the collection of the said note of $8,000 would be *59insisted on, and William H. Tomlinson replied that it would not; and further deponent saith not.

E. J. WADDILL.

Sworn and subscribed before me, this 30th day of April, A. D., 1858. K. T. Morgan, *Magistrate.*

The State oe South Carolina, *Chesterfield District.*

Before me, Kenan T. Morgan, the subscribing officer, comes in person, Culpepper R. Wadkins, who, being duly sworn, deposes — That he was well acquainted with the late Henry M. Tomlinson in his lifetime; and that h¿ has known William H. Tomlinson for twenty-five years past. That he (deponent) is the brother-in-law of the said Henry and William. Deponent saith further, that about the year 1853, he (deponent) became surety for the said William H. Tomlinson in the Bank of Wadesborough, N. C., for a large amount, and that Thomas Tomlinson, Sr., the father of the said William H., was his co-surety therein. That deponent continued after that time to endorse for the said William H. in the Bank of Wadesborough, until about the beginning of the year 1856, when his liabilities on account of his said suretyship amounted to a very large sum, say $13,000. That some time in the Spring of the year 1856, and about a year after the death of the said Henry M. Tomlinson, deponent, in the course of a conversation had with the said William H. Tom-linson, relative to the liabilities aforesaid, of this deponent and the said Thomas Tomlinson, Sr., as sureties, as aforesaid, for him (the said William H.,) asked the said William H. how he was going to redeem his (William’s) promise to secure his (William’s) father and himself (deponent) in their liabilities incurred as aforesaid on his (William’s) behalf, and that the said William H. replied by exhibiting to deponent a note for $8,000, purporting to have been drawn by the said *60William H. Tomlinson, under the signature employed by him at that time in the prosecution of his mercantile business — viz: *“ W. H. Tomlinson, Jlg’i”*— payable to the order of the said Henry M. Tomlinson, and endorsed in blank by the said Henry M., and saying that he (William H.) would “ assign ” over the said note to his (William’s) father and deponent, to secure them as he had promised. Deponent saith further, that the conversation referred to above was had at the residence of the said Thomas Tomlinson, Sr., the father of the said William H., in Stanley county, N. C.; that the note aforesaid was then in the possession and control of the said William H., and that he (the said William H.) promised deponent to “assign” over the said note for the benefit of deponent and the said Thomas Tomlinson, Sr., before he (the said William) should leave his (William’s) father’s house. And further deponent saith not.

C. R. WATKINS.

Sworn to and subscribed before me, [the word “ has” in the fifth line from the top of the first page having b.een first interlined,] this third day of May, A. D., 1858.

K. T. Morgan, *Magistrate.*

The State oe South Carolina, *Chesterfield District.*

Thomas Tomlinson, .Tr., comes in person before me, and says on oath, that, after the bill was filed by deponent aud his mother, Martha Tomlinson, as administrators of the estate of Henry M. Tomlinson, against the creditors and dis-tributees of the said intestate, and after Thomas Tomlinson, Sr., under the order made in the said cause, calling in the creditors to prove their demands, had presented his claim as holder of a promissory note for ¡$8,000, purporting to be made by W. H. Tomliuson, Ag’t, on the 5th July, 1853, and payable to the order of Henry M. Tomlinson, three years *61after date, and endorsed by the said Henry M. Tomlinson, in blank, and before the hearings had before the commissioner and the Circuit Chancellor, upon the validity of the said claim, deponent made every effort in his power to discover how the said Thomas Tomlinson, Sr., came to be the holder of the said note, and at what time he acquired the possession of the same, but could find no one who had ever heard or known of the existence of it until it was produced as aforesaid, as a claim against the estate of the said Henry M. Tomlinson; that among others, deponent applied to Cul-pepper R. Watkins — a son-in-law of the said Thomas Tom-linson, Sr., residing quite near to him, and, therefore, supposed by deponent to have some knowledge on the subject— for information as to the time when, the place where, the person from whom, the consideration for which, and the circumstances under which, the said Thomas Tomlinson, Sr., had become the holder of the said note, but the said Watkins disavowed any knowledge about the matter, and left deponent to believe that he could not give the information-sought; that within a few days after the adjournment of the Circuit Court, in February last, at which the Chancellor decreed in favor of the said claim of the said Thomas Tomlinson, Sr., establishing the said note as a valid demand against the estate, deponent was on a visit to the said Watkins, at his residence in North Carolina, with a view to get information from him about the matters involved in another suit, pending at law, between the said Thomas Tomlinson, Sr., and the administrators of the said Henry M. Tomlinson, and, in a conversation had with said Watkins, he asked deponent if the “ estate ” had lost the “ note case,” and being told in reply that it had, he said that if so he ought to have one-half of the amount, and to deponent’s inquiry, “ why so ?” he said that William H. Tomlinson had given the note in question to his father, the said Thomas Tomlinson, Sr., to be used and applied as an indemnity to the said Thomas and himself (Watkins) against the liability which they had jointly *62incurred, as sureties for the said William to the Bank of Wadesborough and elsewhere, and had promised him (Watkins) so to do; that the said Watkins afterwards wrote to deponent, in reply to a letter referring to the said conversation; that the said William had the said note in his own possession, and shewed it to him (Watkins) in the year 1856, about April, and at that time promised, as aforesaid, and expressed his purpose then forthwith to deposit it with his father for the purpose aforesaid, and that this occurred near to the residence of the said Thomas Tomlinson, Sr. Deponent further says, that he also applied to the said Thomas Tomlinson, Sr., himself, for information as to when, how, and from whom he got the said note, but could get no information from him, as he studiously avoided all conversation with deponent on the subject, and deponent had and could obtain no knowledge about this particular point until after the Circuit decree aforesaid.

THOMAS TOMLINSON, Jr.

Sworn to and subscribed before me, this 8th day of May, A. D., 1858. K. T. Morgan, *Magistrate.*

AFFIDAVITS FOR RESPONDENT.

$8,000. Chekaw, S. C., July 5th, 1S53.

Three years after date, I promise to pay to the order of Henry M. Tomlinson, $8,000, value received. '

' (Signed) W. H. TOMLINSON, Agent.

Endorsed, H. M. Tomlinson.

The State of North Carolina, *Stanly County.*

Thomas Tomlinson, Sr., maketh oath, and says, That Henry M. Tomlinson, the intestate in the pleadings men*63tioned, was, in his lifetime, and at the time of his death, and his estate still is justly and truly indebted to this deponent, in the sum of $8,000, with interest on the same from the 5th day of July, A. D., 1856, by virtue of his endorsement of the negotiable note above copied ; and this deponent further says, that neither he, this deponent, nor any other person, by his order or to his knowledge or belief, for his use hath received the said sum of money or any part thereof, or any security or satisfaction for the same or any part thereof. And this deponent further says that he is aware of no discount to which said note is subject.

THOS. TOMLINSON.

Sworn to before me this 18th day of December, A. D., 1857.

Witness my hand and official seal,

[l. s.] William Allen,

*Commissioner of Deeds for the State of South Carolina.*

South Carolina, *Chesterfield District,*

I, J. C. Craig, Com’r Equity for said district, do certify that the foregoing is a true and correct copy taken from the original.

Given under my hand and seal of office, this 18th day of November, A. D., 1858.

[seal.] J. C. CRAIG, *Commissioner.*

The State oe N orth Carolina, *Stanly County.*

Thomas Tomlinson, Sr., comes in person before me, and, after being duly sworn, makes oath, and says, That he never has refused to give any information in regard to the note for $8,000, which is the subject matter of the appeal in the case above stated, to the administrators, the complainants; nor has he in any way evaded their enquiries with respect to said note. On the contrary, he, this deponent, on or about the *6410th day of December, A. D., 1857 (the only time when inquiry was made of him on the subject), stated the consideration moving from this deponent for the endorsement of said note, to Thomas Tomlinson, Jr., one of the complainants.

Deponent further says that some time in June, A. D., *1856,*deponent sent a message by Martha Tomlinson, one of the complainants, to the said Thomas Tomlinson, Jr., the other complainant, to come up and see him, this deponent,, and it might save the estate of Henry M. Tomlinson, his intestate, cost and the administrators trouble. Deponent further says, that, at'the time last mentioned, viz: June, 1856, no proceedings had been instituted for the recovery of the said note? and deponent thought some arrangement might be made by which said note could be settled without suit. Deponent further says, that, finding that complainants paid no attention to his request, suit was instituted on said note, to recover from the estate of Henry M. Tomlinson what it justly owed this deponent on account of his endorsement of said note. Deponent further says, that on or about the 10th day of December, 1857, he stated to Thomas Tomlinson, Jr., that deponent had sent him the message aforesaid, and that Thomas Tomliuson, Jr., did not deny having received said message.

Deponent further swears that William H. Tomlinson has not been his agent since the death of the said Henry M. Tomlin-son (except for the purpose of making a demand for certain slaves claimed by this deponent), and that said William H. was never authorized by this deponent, to say that if deponent recovered the slaves in the action commenced for their recovery, that the collection of said note would not be insisted on by this deponent.

Deponent further says, that he never knew or heard of the conversation between C. R. Watkins and William H. Tomlin-son in regard to the assignment of a note for $8,000 to protect deponent and said Watkius in their suretyship for the *65said William H. Tomlinson, mentioned in the affidavit of said Watkins, until a copy of said affidavit was sent to deponent by his solicitors in the case above stated.

THOMAS TOMLINSON, Sr.

Sworn to before me this 21st day of October, 1858.

[l. s.] William Allen,

*Commissioner to take the acknowledgments*

*of Deeds, fyc., S¡'c., for the State of South Carolina.*

The State of North Carolina, 1 *Stanly County. j*

Before me, William Allen, appeared C. R. Watkins, of said County, and, after being duly sworn, says that the object of this affidavit is to explain the one given the third day of May, 1858, before K. T. Morgan, of Chesterfield district, S. C., in the case of the administrators of the late Henry M. Tomlin-son, Sr., of Stanly County, N. C., in Equity, the declaration stated in that affidavit concerning the eight thousand dollar note: Thomas Tomlinson, Sr., was not present at the time, and did not hear it.

November 15, 1858. C. R. WATKINS.

William Allen,

*Commissioner for the State of South Carolina.*

The State of North Carolina, *Stanly County.*

Before me personally appears C. R. Watkins, who on oath says: That he desires to make further correction to his affidavit made before K. T. Morgan, Esq., on the 3d day of May, A. D.. 1858, in the case of Martha Tomlinson and Thomas Tom-linson, Jr., administrators of H. M. Tomlinson, vs. Thomas Tomlinson, Sr., and others, by stating that the facts, detailed-*66in said affidavit were all made known to the said Thomas Tomlinson, Jr., administrator, as aforesaid, before the reference before the Commissioner in Equity, and that deponent promised to attend said references as a witness, if the said Thomas Tomlinson, Jr., desired it; but never being called upon to do so, he (this deponent) did not attend. Deponent further says on oath, that he did not intend to say in said affidavit that the note therein alluded to was endorsed in blank by the said Plenry M., for he does not remember whether such was the fact, nor does he remember the date or the time of maturity of said note. Deponent further says, that not only was Thomas Tomlinson, Sr., not present at the conversation between this deponent and William H. Tomlinson, detailed in said affidavit, but deponent believes that he knew nothing about it at the time, for some time after said conversation deponent asked the said Thomas Tomlinson, Sr., if the said William H. had assigned over the said note to secure this deponent and the said Thomas Tomlinson, Sr., from liability, by reason of their suretyship for the said William H., when the said Thomas Tomlinson, Sr., replied that he had not, and nothing that then passed indicated that the said Thomas Tomlinson, Sr., knew of the proposition of the said William EL, to assign the said note for the purpose aforesaid. Deponent further says, that the affidavit of the Sd of May, 1858, was made hurriedly, and therefore he finds it necessary to make these corrections.

C. R. WATKINS.

Sworn to before me, the 2d day ,of February, 1859,

William Allen, [l. s.]

*Commissioner for the Stale of South Carolina.*

Johnston, Ch. It is ordered, that the order made at February'Term, 1858, in the cause wherein Martha Tomlinson *67and Thomas Tomlinson, Jr., are complainants, and Thomas Tomlinson, Sr., Ann Eliza Tomlinson and others, distribu-tees and creditors of Henry M. Tomlinson, deceased, are defendants, in which cause this petition is filed, confirming the report of the commissioner upon the claims against the intestate, Henry M. Tomlinson, proved before him, in so far. as the said order establishes the claim of the defendant, Thomas Tomlinson, Sr., as holder of the promissory note of $8,000, mentioned in the petition, as a valid demand against the estate of the said intestate, be rescinded; and that the said cause, so far as the validity of the said claim of the defendant, Thomas Tomlinson, is involved, be set down for a rehearing.

It is further ordered, that the former order of this Court in the said cause, enjoining the creditors of the intestate, Henry M. Tomlinson, from proceeding in their actions at law, be so modified as that the defendant, Thomas Tomlinson, Sr., may proceed to. trial and verdict in his action heretofore commenced in the Court of Common Pleas, for Chesterfield district, as alleged endorsee and holder of the aforesaid promissory note of $8,000, to recover against the present petitioners, as administrators of the estate of Henry M. Tomlinson, upon the liability of the said Henry M., as alleged endorser of the said promissory note — that the said. Thomas Tomlin-son, Sr., have leave and right to file a declaration in the said action, and the present petitioners, defendants in the said action, be required to plead to the said declaration — that the said parties bring the said action to trial and verdict in the said Court of Common Pleas, for Chesterfield district — and when the said action shall be fully disposed of (by appeal, if necessary,) at law, that all further proceedings at law in the said action be suspended, and the said record be brought into . this Court for the further order of this Court touching the same, in conformity to the result attained at law.

The defendant, Thomas Tomlinson, Sr., appealed on the grounds:

*681. Because the case made by the petition raises a new question, making an entirely new issue, and requiring new depositions.

*2.*Because the petition bringing forward matter entirely new, and raising an issue not before the Court on the original hearing, should have been accompanied by a bill in the nature of a bill of review.

3. Because the evidence said to have been discovered since the original hearing was not in writing.

4. Because it appeared from the affidavit of the very witness, whose testimony was said to have been discovered after the original hearing, that the said testimony was in fact made known to one of the complainants, Thomas Tomlinson, Jr., before the reference and before the original hearing.

5. Because, as it is respectfully submitted, his Honor erred in ordering an action at law to test the validity of said claim, the case being before him merely on a petition to rehear in the Court of Chancery.

6. Because the testimony said to have been discovered since the original hearing, is not material.

*Mclver,*for appellant.

*Inglis,*contra.

[Authorities cited: *Huson vs. Pickett, 2*Hill, Ch., 351 ; *Hunt vs. Smith, 3*Rich. Eq., 541 ; 6 B. Munro, 340; *Dexter vs. Arnold,*5 Mason, 304; *Durant, vs. Ashmore, 2*Rich., 194; *Simpson vs. Dawes,*5 Rich. Eq., 425; 6 Rich. Eq., 364; Mitf. Eq. PL, 83; Story, Eq. PL, § 412; 3 Dan’l Ch. Pr., 1624, 1688 ; *Dogan vs. Dubois, 2*Rich. Eq., 85; *Carson vs. Hill,*l McM., 76 ; *Aiken vs. Cathcart,*3 Rich., 133 ; 3 Dan’l Ch. Pr., 1631 ; Story, Eq. PI. § 421, 422; 2 Mad. Ch. Pr., 483 ; *Johnson vs. Lewis,*1 Rich. Eq., 390 ; 2 Dan’l Ch. Pr., 1624— 1630, note 1 ; 2 Smith’s Pr., 49, 32, 34 ; 2 Russel R., 91 ; 3 Eng. Ch. R., 44; 1 Yes. and B., 141; Rich. Eq. Cas., 405; *69*Perkins vs. Lang,*1 McC. Ch., 30; *Haskell vs. Raoul,*1 McC. Ch., 22, 32; *Huson vs.*Pickett, 2 Hill, Ch., 351; *Johnson vs. Britton,*Dud. Eq., 28; 5 Rich. Eq., 519; 3 John’s Ch., 124.]

The opinion of the Court was delivered by

Dunkin, Ch.

After a careful consideration of the grounds of appeal, this Court is of opinion that the judgment of the Chancellor may be well vindicated upon the facts presented, and is not at variance with any principle heretofore established.

The plaintiffs (the widow and son of Henry M. Tom-linson, deceased,) had filed a bill to marshal the assets of their intestate’s estate. Among the claims presented, under the order of February, 1857, was that of the defendant, Thomas Tomlinson, Sr., (the father of the intestate,) for $8,000. For reasons stated in the petition, the plaintiffs were greatly surprised at this demand, and resisted the payment both before the commissioner, and in the Circuit Court. Their defence was, that the signature of the intestate to the endorsement was not genuine. Much evidence was offered, but the commissioner concluded that the genuineness of the handwriting was sustained by the preponderance of testimony, and this conclusion was sanctioned by the presiding Chancellor, February, 1858. An appeal was taken from this decision, and pending the appeal, to wit: in April, 1858, this petition for rehearing was filed. The application was at first addressed to this Court; but in conformity with the decision of *Downes vs. Simpson,*5 Rich. Eq., 422, it was directed to be made to the Circuit Court.

It will be perceived, that the ground upon which the petitioners rely, is the discovery of a new fact, constituting in itself a separate and independent defence, distinct from the defence taken at the original hearing, of which the plaintiffs were then ignorant; and the evidence of which has come to their knowledge since the hearing. If, from the affidavits submitted to him, the Chancellor conceived that the defence *70was material — that a reasonable foundation was raised for further inquiry into the fact; and was furthermore satisfied, that the evidence was not only unknown to the petitioners at the former hearing, but that their ignorance was not in consequence of a want of due diligence on their part, his direction for re-hearing was properly granted. The material fact, on which the petitioners press their claim, is, that the endorsement, which is the foundation of the defendant’s demand, was an accommodation endorsement of the intestate on a note of William H. Tomlinson, and left in the possession of the latter, many years since — that it had never been used or negotiated by the said W. H. Tomlinson, in the lifetime of the intestate, but was still in his possession as late as 1856, some twelve months after the intestate’s death, and that the note was at, or about, that time, transferred, or assigned, or delivered, by W. H. Tomlinson to the defendant, Thomas Tomlinson, Sr., for the purpose of indemnifying him and his son-in-law, Culpepper Watkins, on account of their sure-tyship for the said W. H. Tomlinson, in the Bank of Wades-borough. If these facts be susceptible of proof, it is scarcely necessary to say that they constitute a new and material element in the defence of the petitioners. As to the existence of the fact, to wit: that the note was in possession of the maker, W. H. Tomlinson, after the death of the intestate; and that it was set on foot subsequently by him, the affidavit of Culpepper R. Watkins, 3 May, 1858, is very distinct; nor is this statement materially affected by his subsequent affidavits of November, 1858, and February, 1859. But, after the petition had been filed, and after the defendant, Thomas Tomlinson, Sr., had been put in possession of the affidavit of C. R, Watkins, of 3 May, 1858, to wit: on 21 October, 1858, he 'also makes an affidavit in reply. It is very material to observe that, although this affidavit is prepared with great care and caution, and, upon subordinate and collateral matters, is very full and positive, the affiant, in no part, undertakes to traverse the important allegation, *71that the note was set on foot by Wm. H. Tomlinson, and was received by him, the defendant, subsequent to the death of the intestate. The apparent reticence of the defendant in reference to this charge may well have influenced the judgment of the Chancellor in giving leave for further inquiry; and, notwithstanding the affidavits submitted on the part of the defence, the Court is satisfied with the conclusion of the Chancellor, that the evidence was not such as the plaintiffs could, under the circumstances, with due diligence, have procured prior to the original hearing.

Then is the objection well taken, that in order to warrant a rehearing, the after-discovered evidence must be in writing? The appellant is certainly sustained by expressions of opinion on the part of more than one Chancellor in some of our reported cases, but we are not aware of any case in which the abstract proposition has been involved and decided. None such has been adduced. The Court recognizes, fully, not only the encouragement to protracted litigation, but the danger of perjury, in permitting an unsuccessful party to bolster up a defective case by suppletory proof, and the Court has no disposition to encounter such hazard. But we think the distinction is accurately stated by Chancellor Harper, in *Cantey vs. Blair, 1*Rich. Eq., 43. “When a party comes into this Court on the ground of newly-discovered evidence, he must shew some tangible and substantial fact, constituting, of itself, a defence, of which the evidence had come to his knowledge since the trial; not particles of testimony, as they are called, or cumulative testimony,” &c. And this is sustained by the instructive case of *Baker vs. Whiting,*1 Story C. C. Rep., 218, in which Judge Story says: “The general rule is, not to allow a rehearing upon new-discovered evidence, which is merely cumulative, to the litigated facts already in -issue.” With this qualification, and for such purpose, we are of opinion that newly-discovered evidence, though oral, may serve as the foundation of an application for rehearing. In this case, the evidence pointed to a new *72fact, constituting a distinct ground of defence, and was strictly within the distinction thus recognized. The effect of the order of the Circuit Court is not to adjudicate the rights of the parties, but to remit them to the ordinary and appropriate tribunal for inquiry and determination.

it is ordered and decreed that the appeal be dismissed.

Johnston and Wardlaw, CC., concurred.

*Appeal dismissed.*