
    Elijah Hinson, Administrator of Phil Starke, v. James B. Pickett. John Myers, Administrator of B. Starke, v. James B. Pickett.
    On what grounds motions for re-henrings or bills of review, will be granted The oases on the subject reviewed. [*353]
    A rehearing will not be granted on the ground of newly procured evidence which would have materially varied the case on trial, it must appear that the evidence was discovered since the decree, and of which the party could not have had the benefit in the first instance. Motion for re-hearing refused, where it appeared that the party knew of the evidence before trial, and could by proper diligence have procured it. [*357]
    Rule laid down that a rehearing in Chancery will not be granted, on the ground of after-discovered oral evidence. [*359]
    Fairfield, July 1834.
    De Saussure, Chancellor. The petition by the defendant, Mr. Pickett, is for a re-hearing.
    The petition which accompanies this decree, sets forth, that since the decrees of the Court of Equity, and of the Court of Appeals in the year 1832, whereby it was decided, that the sale of certain negroes (the subject of the dispute in the above cases) by the said James B. Pickett, to one James A. Knighton, was not a real sale, but colourable and collusive, the said defendant, James B. Pickett, has discovered, and is prepared to submit ample testimony, to establish the fact that he did on the 30th December, 1829, really and bona fide sell and deliver to the said James A. Knighton, all his right, title and interest, in and to the slaves in dispute : that is to say, he has procured the testimony of James A. Knighton himself, who resided in distant parts at the time of the trial; also the original bill of sale given by defendant to said Knighton, and the testimony of the subscribing witness to said bill of sale, Jeremiah Gaither, (who was examined on the trial of the said cases, to prove the sale of the negroes, but was excluded from giving evidence upon the most important parts of the transaction, on account of the non-production of the bill of sale,) and which bill of sale it was not then in the power of the defendant to produce, being then in the possession of James A. Knighton, who resided some where far distant in the Western country. Also the testimony of Nathan Knox, (lately discovered,) who knew the negroes, or some of them, whilst they were in the possession of said Knighton, in the Western country, and will prove that Knighton held and used them, and finally sold some of them as his own property, *3f)2T *an<^ n°t ab as the property of the petitioner, (J. B. Pickett.) -* Also the lately discovered evidence of Joseph Hinson, the brother of the plaintiff Hinson, and the evidence of Mr. Austin Peay, that before the petitioner (Pickett) sold said negroes to Knighton, he actually offered to sell all his interest therein to the plaintiff, E. Hinson, upon just and reasonable terms, to wit, the payment of the money due to him from Baldy H. Starke, then deceased.
    The petitioner humbly insisted, that upon the above-stated testimony being heard, it would be decided by the Court that he has incurred no liability to the plaintiffs, or either of them, by selling the said negroes to Knighton : or, if he should be held liable at all, that he ought to be held liable for the value of the negroes on the 30th December, 1829, and hire until that time, (the day on which he sold to Knighton,) instead of their value on the 11th June, 1833, and hire until that time, the day on which it would have been his duty to deliver up the said negroes to the plaintiff, Hinson, as administrator of Phil. Starke ; (if he had not in fact sold them) inasmuch as from the testimony above referred to, and ready to be produced, it will appear manifestly that the petitioner could not possibly produce or deliver up the aforesaid negroes in conformity with said decree, which he would gladly have done had it been in his power. The petitioner therefore prayed for a re-hearing of said cases on the matter above stated. The Commissioner made his report in these cases on the reference ordered by the Court of Appeals under the decrees, and exceptions were filed. These have been argued and decided at the present Court.
    The counsel for the defendant also argued the motion for a re-hearing on the petition above stated, and I am now to decide thereon.
    It is a serious application for a grave purpose, and should be well considered. That the Court should set its face inexorably’against applications for re-hearings, would imply a degree of confidence in its infallibility which would illy comport with the humility and modesty becoming men and judges. That it should yield too readily to them, would lead to such renewed and prolonged litigations as would weary out the patience, and exhaust the funds of suitors of small fortune It therefore requires the exercise of a sound discretion and judgment, to know in what cases it would be proper to grant or refuse them. As far as my mind possesses these faculties, they shall be exercised in this cause. To ^induce the Court to grant a re-hearing after decree, there r*qKo must be a strong ease made that a clear mistake has been made, L and that new evidence has been discovered, which materially varies the case from that which was made at the former hearing.
    In Mitford’s pleadings (afterwards Lord Kedesdale) it is laid down ; “ That the object of a bill of review is to procure an examination or reversal of a decree made upon a former bill signed and enrolled. It may be brought upon error at law appearing in the body of the decree itself, or upon the discovery of new matter. If it be sought, to reverse a decree signed and enrolled upon discovery of some new matter, the leave of the Court must be first obtained: and this will not be granted, but upon allegation upon oath that the new matter could not be produced, or used by the party claiming the benefit of it, at the time when the decree was made. If the Court be satisfied that the new matter is relevant and material, and such as might probably have occasioned a different determination, it will permit a bill of review to be filed.” Mitford, p. 18-9. To render a bill of review necessary, the decree sought to be impeached must have been signed and enrolled. If this has not been done, a decree may be examined and reversed upon a species of supplemental bill in nature of a bill of review, where any new matter has been discovered since the decree. And a decree not signed and enrolled, may be altered upon a re-hearing without the assistance of a bill of review, if there be sufficient matter to reverse it appearing upon the former proceedings. The investigation of the decree must be brought on by petition for re-hearing. The office of the supplemental bill in nature of a bill of review, is to supply the defect which occasioned the decree upon the former bill. It is necessary to obtain the leave of the Court to bring a supplemental bill of this nature ; and the same affidavit is required for this, as is necessary to obtain leave to bring a bill of review on discovery of new matter. — Mitford, 81-2. Such is the clear exposition of that learned equity lawyer, Mr. Mitford, of the course of the Court on this subject. In this he is supported by other elementary works, as well as by decided cases. See 2. Comyn’s Dig. Tit. Chancery, letter Gr. p. 252, letter (Y. 5,) p. 321. And that great master of Equity, Chancellor Kent, has made corresponding decisions. See Wiser & Blachley, 2 John. Ch. Rep. 488, and Livingston v. Hubbs, 3 John. Ch. Rep. 124. Nor *has our own Court of Equity been barren of decisions on J this subject.
    Before I refer to them, however, it is proper to notice, that as we have no enrolment of decrees in this State according to the English and New York practice, the signature of the decree by the Chancellor of the Circuit Court, and by the Judges of the Court of Appeals, with delivery to the recording officer to be recorded, is held to be equivalent to enrolment.
    I should also notice, that prior to December, 1824, there existed no Court of Appeals; and the Chancellors more readily listened to applications for re-hearings, to enable them to revise their own errors or oversights.
    In the case of Brailsford, and Wife, v. Heyward, Executor of Heyward, 2 Eq. Rep., p. 34, the Court granted a motion for re-hearing, certainly on looser grounds than would now be listened to. The petition for a rehearing was on the ground of error in law on the face of the decree, in deciding that the defendant was accountable, and accountable without deduction. The Court granted the re-hearing, but decided after the argument that the first decree was correct.
    In the case of Burn v. Administrator of Poaug, 3 Eq. Rep. 596, 610, &c., a petition for a bill of review or re-hearing was rejected by the Court, because the petition did not make a case which comes within the rules as to bills of review — for there is no error apparent on the face of the decree — nor any allegation of new matter affecting the justice of the ease, which could not have been (procured) used at the time of the first decree — nor is the petitioner entitled to a re-hearing; as the facts existing in the decree, do not warrant the conclusions drawn from them by the petitioner, but support the decree.
    In the case of Harvey v. Murrell, in Harper’s Eq. Rep. 251, there was a petition for leave to file a bill of review, on the ground of the discovery of new matter. The new matter was the inventory and appraisement of the estate of John Murrell, deceased, and a receipt which was in the hands of the executor, the existence of which was not known at the time of the trial. The Court decided that the application should be discharged, because, if the inventory had been considered essential in the investigation of the case, it could have been easily procured at the Ordinary’s office, where it was recorded ; and having neglected to do so, *aKKq furnished no ground *for the application ; and as to the receipt, J it was irrelevant to the subject in litigation, and could not have varied the ease.
    In the case of Haskell v Raoul, in 1 M’C. Ch. 22, 28, 32, it was detided, by the then new Court of Appeals, that the petition for a re-hearing should not be granted.
    The Court then examined the grounds on which bills of review and applications for re-hearings were granted in England, and in the Courts of this country, (see pp. 28, 29, 30,) and concurred in the preceding-decisions. The Court, in page 30, denied the propriety of allowing bills of review', in cases of alleged error of law, on the face of the decree of the Supreme Court; though it admitted that a bill of review for newly-discovered evidence might be granted.
    The Court also cited and relied on the ease of Perkins & Lang, decided by the old Court of Appeals in Equity, by w'hich it was decreed that a bill of review lies where there is a discovery of new matter made since the decree, which new' matter the party applying could not have had the benefit of in the first instance; making a new' case, and one proper for equity jurisdiction. In that case, it being clearly shown that there was evidence (a deed) newly discovered after the decree, and which had been in the possession of the other party, and not disclosed, the Court overruled the demurrer to the bill of review.
    The decision of the old Court of Appeals in equity, in another case, illustrates the course of the Court, and the great caution used in granting re-hearings, and directing new trials. In the case of the Administrator of Jenkins v. The Administrator of Smith, at law a verdictwas obtained for the amount of a note of hand, given by the deceased Smith to the deceased Jenkins for $5000. After the verdict and judgment at law, the administrator, of Smith was informed by three gentlemen that there had been no consideration for the note, which had been given to Jenkins for a special purpose, and that transaction not being carried into effect, the note ought to have been cancelled. The Court of law refused to grant a new trial, because the newly discovered evidence was parol. The administrator then filed his bill in equity for relief against the note. It appeared clearly by the evidence of three wetnesses that there had not been any consideration for the note which was given to carry into effect an operation of Smith’s own, but which failed, and he dying very soon after, Jenkins kept the note, and *he then dying, his administrator brought suit on the note. The Court of Equity gave relief, but L required the most clear and positive testimony that the evidence wras not lcnow'n to the administrator on the trial at law.
    In the case now before the Court, the petition is to grant a re-hearing (or bill of review) on the ground of facts discovered since the decree of the Circuit Court of Equity and Court of Appeals, which are relevant to the merits of the.case, and which would materially vary the case formerly made, and entitle the defendant to a decree.
    The alleged discovery of new' matter is stated as follows : That the defendant, James B. Pickett, has procured the testimony of James A. Knighton himself, (to whom the alleged sale was made) who resided in distant parts at the time of trial: also the. original bill of sale given by defendant to said Knighton ; and the testimony of Gaither, the subscribing witness to said bill of sale. And the testimony of Mr. Nathan Knox, (lately discovered,) who knew the negroes, or some of them, in possession of James Knighton, in the western country, who used them as his own, and sold some of them as his own property; and also the lately discovered testimony of Joseph Hinson, the brother of plaintiff, and the evidence of Mr. Austin Peay, that defendant, before he sold the negroes to Knighton, actually offered to sell all his interest in them to the plaintiff, Hinson.
    We must now examine whether these allegations make such a case as entitles the defendant to a re-hearing or bill of review, according to the rules above laid down. It is not pretended (for it would have been absurd to do so) that the defendant had discovered the evidence of Mr. Knighton and the bill of sale since the decree, but that he had procured it subsequently. He knew perfectly well who was the person to whom he alleged he had sold the slaves, and that he had given a formal bill of sale for the slaves. This was not a discovery of new evidence. He knew he had executed a bill of sale, and had delivered the negroes. He knew that the validity and the reality of that sale was in question. It was alleged by the bill to be collusive, and a mere cover to remove the slaves out of the jurisdiction of the Court, and out of the reach of persons claiming an interest in them. The bill made it a question, and the answer met the question. The defendant then was fully aware that he was called upon *qKi7i t° support the sale by *proofs. And his counsel would advise him, J of course, what proofs were necessary. Nor could there be any complaint of want of time, for the bill appears on its face to have been filed on the 29th January, 1830, and the cause was not brought to a hearing till the 11th July, 1832, which was a period of about thirty ' months ; giving time enough to have procured the evidence from Europe, and even from Calcutta.
    If then the party neglected to take proper measures to obtain the evidence necessary to sustain his case in due time, it is his own fault, and he has' himself alone to complain of. That he is thus in default is manifest from the fact, that the evidence in question now presented to the Court, was all procured, even after the hearing of the cause in July, 1832, for the commission on which the examination of Knighton was taken, bears date, the 11th May, 1833, and the execution of it by the examination of Knighton, is endorsed on the 4th of June, 1833 ; showing how promptly the evidence could be procured when the party was in earnest to procure it.
    With respect to the rest of the evidence alleged to be new and furnishing a ground for a re-hearing or bill of review, the greater part of it was in the knowledge and the reach of the defendant, and might with reasonable pains have been procured before the trial in July, 1832.
    The petition alleged the discovery (in contra-distinction to the procurement of the evidence) of the evidence of one Nathan Knox, who knew the negroes, and that Knighton treated them as his own, and not as the property of Pickett.
    This evidence would have been merely subsidiary to that of Knighton. And it would have been perfectly easy before the trial, to have procured evidence from any persons residing near Knighton, (and his residence is not denied to have been known to Mr. Pickett) as to his possession of said slaves, and of his treatment of them as if they were his own. Even on the supposition of a mere pretended sale, the possession and the treatment w^uld seem to indicate ownership in Knighton.
    
      The question then recurs, and is now to be decided, whether the petition makes such a case of newly-discovered evidence, as entitles the defendant to the re-examination of the’decrees of. the Circuit Court and Court of Appeals.
    I have examined the subject very fully, very carefully, and with *some anxiety ; for the answer of Mr. Pickett that it was an actual L sale, made a strong impression ; and if the evidence which produced a strong impression had been contradicted, either at the original hearing, or by newly-discovered evidence not known, and not attainable before the decree, I should have been gratified that he should have the benefit of it. But I dare not violate rules made with great deliberation and on great experience, to gratify my wishes. I am not at liberty to receive newly procured evidence which was in the knowledge and reach of the party, as newly discovered evidence; and if I did receive, I did not know that it would materially change the impression made by the other evidence in the cause. There is one overruling fact. The new evidence does not show how, or when, any payment was made by Knighton to Pickett. The petition must therefore be refused.
    I cannot forbear making one or two further remarks growing out of the transaction.
    Mr. Pickett knew that he did not hold, nor did he ever pretend to hold the slaves, as absolute owner. He knew that he had but a limited interest in the slaves, yet he undertook to send them out of the State, and out of the reach of those persons who had an interest in them, either by absolute sale as he alleges, or by an improper or covinous transaction appearing to be a sale. This was exceedingly improper. In the exercise of his own rights and powers, he should have respected the rights and interests of others. This Court grants injunctions to restrain persons, having life estates in slaves, from transferring the properly out of the State, on the ground of danger to the interests of remainder-men. It is more than a quarter of a century since I made the first decree on the subject, in Lattimore v. Elgin, 4 Eq. Hep. 26, restraining such transfer, in which the grounds and reasons are given largely.
    The Courts have followed out the principle, and the present Court of Appeals has gone further. Upon very slight grounds of apprehension, it has, as I am informed, sanctioned restraints on tenants for life, from carrying slave property out of the State.
    The present immense and unfortunate emigration, where persons are carrying off a vast number of slaves, held by various titles, and some of them for short terms, seems to require great vigilance *in the Courts, to protect and preserve the interests of the citizens who L remain faithful to their country.
    Defendant appeals, and moves to reverse the decision of the Chancellor in this case, upon the ground:—
    . That the facts and circumstances set forth in the petition for a rehearing are sufficient in equity to entitle him to the same.
    
      Glarke and M'Dowell, for the motion.
    
      M‘Gall, contra.
    
      
       Not reported.
    
   Johnson, J.

We concur entirely in the conclusions of the Chancellor, and propose to add to wliat has been already so well said, only a few remarks in reference to the point decided in the case of The Administrators of Jenkins v. The Administrators of Smith, in which relief was granted on the discovery of oral evidence after the trial.

The rule at law, as long and well settled in this State, is, that a new trial will not be granted on the ground of after-discovered testimony. It was so ruled in the case of the State v. Harding, 2 Bay, 267, and has beeu followed ever since. (See Ecfert v. Des Coudress, 1 Con. Rep. 69; Executors of Evans v. Rogers, 2 Nott & M'Cord, 563.) And I am unable to perceive that there is any solid foundation for a different rule in Chancery. The delay to which it would lead, and the danger of subornation of perjury, in which the rule is founded, is precisely as great in the one Court as the other. And that is most obviously the leaning of Chancellor Kent, in Livingston v. Hubbs, 3 John’s Ch, Rep. 241, although the question was not directly decided; and such is obviously the conclusion to be drawn as to the rule in England, from the remarks of the Lord Chancellor, in Taylor v. Sharp, 3 P. W. 371, referred to by Chancellor Kent. During our present sitting, the question, came indirectly before the Court, in the case of Perry v. Mays, in which the same opinion was expressed. The question cannot depend on the number or the respectability of the witnesses — one unsuspected, irreproachable witness, would obtain credit for what he would swear, as soon as an hundred of doubtful and suspicious character, yet it would be difficult to discredit an hundred of such witnesses, who, without any * concert testified to the same facts, and which were in their nature probable. I am therefore very decidedly of opinion, that a rehearing of a cause in Chancery ought not to be granted in any case, on the ground of after-discovered oral evidence.  