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South Carolina. Court of Appeals.

Reports of cases in equity, argued and determined in the Court of appeals and Court of errors of South Carolina ... : December, 1844, to [May, 1846; November, 1850, to May, 1868] ... (Volume 11) online

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Online LibrarySouth Carolina. Court of AppealsReports of cases in equity, argued and determined in the Court of appeals and Court of errors of South Carolina ... : December, 1844, to [May, 1846; November, 1850, to May, 1868] ... (Volume 11) → online text (page 6 of 50)
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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. Tomlinson, Ag't. on the 5th July, 1853, and
payable to tlie order of Henry M. Tomlinson, three years



APPEALS IN EaUITY. 61

Columbia, May, 1869.

after date, and endorsed by the said Henry M. Tomlinson, in
blank, and before the hearings had before the coinniissioncr
^and the Circnit Chancellor, npon 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
ot the said note, and at what time he arqnired 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 afore-
said, as a claim against the estate of the said Henry M.
Tomlinson; that among otliers, deponent applied to Cul-
pepper R. WatUins — a son-in-law of the said Thomas Tom-
linson, Sr., residing quite near to him, and, therefore, sup-
posed 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 cir-
cumstances 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 depo-
nent to believe that lie 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, deponetil was on a visft 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, pend-
ing 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 liis 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



63 APPEALS IN EaUlTY.

Tomlinson vs. Tomlinson.

incurred as sureties for the said William to the Bank of
Wadesborough and elsewhere, and had promised him (Wat-
kins) so to do; that the said Watkins afterwards wrote to^
deponent, in reply to a letter referring to the said conversa-
tion ; 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 conversa-
tion 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, Jk.

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



AFFIDAVITS FOR RESPONDENT.

$8,000. Cheraw, S. C, July 5th, 1853.

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, "I
Stanly County. j

Thomas Tomlinson, Sr., maketh oath, and says, That
Henry M. Tomlinson, the intestate in the pleadings men-



APPEALS IN EaUlTY. 63

Columbia, May, 1859.

tinned, was, in his lifetime, and at ilie 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. I)., \S5G, by virtue o( 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 hatli received
the said sum of money or any part thereof, or any security or
satisfaction for the same or any part thereof. And this depo-
nent further says that he is aware of no discount to wliich
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 Caroliiia.

South Carolina, \
Chesterfield District, j

1, 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 ISth day of
November, A. D., 1858.

[seal.] J. C. CRAIG, Comniissio77er.



The State of North Carolina,
St anil/ Coi(?iti/.
Thomas Tonilinson, Sr., comes in person before me, and,
after being duly sworn, makes oath, and says, That he never
has reftised to give any information in regard to tlie 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



G4 APPEALS IN EaUlTY.

Tomlinson vs. Tomlinsoii.

10th day of December, A. D., 1857 (the only time when
inquiry was made of liim on the subject), stated the consid-
eration moving from this deponent for the endorsement of
said note, to Thomas Tomhnson, Jr., one of the complain-
ants.

Deponent further says that some time in June, A. D., 1S56,
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 proceed-
ings 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
irotn the estate of Henry M. Tomlinson what it justly owed
tliis deponent on account of his endorsement of said note.
Deponent further says, that on or about the lOtli day of
December, 1857, he stated to Thomas Tomlinson, Jr., that
deponent had sent him the message aforesaid, and that
Thomas Tomlinson, 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 depo-
nent recovered tiie slaves in the action commenced for tlieir
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 pro-
tect deponent and said Watkins in their suretyship for the



APPEALS IN EQUITY. 65

Columbia, May, 1859.

said 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 2 1st day of October, 1858.
[l. s.] William Allen,
Cnmmissiojiey^ in take the acknoivJedgineyits

of Deeds, Sf-c, Sj-c., for the State of South Carolina.



The State of North Carolina, \
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,
1S5S, 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,
Comjnissioner for the State of South Carolina.



The State of North Carolina, 1
Sta?ify County. j

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, .Ir., administrators of H. M. Tomlinson, vs. Thomas
Tomlinson, Sr., and others, by stating that the facts detailed
6



66 APPEALS IN EaUITY.

Tomlinson vs. Tomlinsoii.

in said affidavit were all made known to the said Thomas
Tonilinson, Jr., administrator, as aforesaid, before the refer-
ence 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 Henry 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 conver-
sation 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 conver-
sation 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 lia-
bility, 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 H., to assign the said note for the purpose aforesaid.
Deponent further says, that the affidavit of the 3d of May,
1S5S, 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.]
Commissioiier for the Stale of South Carolina.



Johnston, Ch. It is ordered, that the order made at Febru-
ary Term, 1858, in the cause wherein Martha Tomlinson



APPEALS IN EaUITY. 67

Columbia, May. 1S59.

and 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, l)e so
modified as that the defendant, Thomas Tomlinson, Sr., may
proceed to trial and verdict in his action heretofore com-
menced in the Court of Common Pleas, for Chesterfield dis-
trict, as alleged endorsee and holder of the aforesaid promis-
sory 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 tlie 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 :



68 APPEALS IN EaUITY.

Tomlinson vx. Tomlinson.

1. 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 wit-
ness, 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;
Sitnpson vs. Daives, 5 Rich. Eq., 425; 6 Rich. Eq., 364; Mitf.
Eq. PI., 83; Story, Eq. PI, § 412; 3 Dan'l Ch. Pr., 1624,
1688 ; Dogan vs. Dubois, 2 Rich. Eq., 85 ; Carson vs. Hill,
1 McM., 76 ; *^iken vs. Cathcart, 3 Rich., 133 ; 3 Dan'l Ch.
Pr., 1631 ; Story, Eq. PI. § 421, 422 ; 2 Mad. Ch. Pr., 483 ;
Johnso7i vs. Leivis, 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 Ves. and B., 141 ; Rich. Eq. Cas., 405;



APPEALS IN EaUITY. 69



Columbia, May, 1S59.



Perkins vs. Lima;, 1 JNIcC. Cli., 30; Haskell vs. Raoul, 1 McC.
Ch., 22, 32 ; Ihison vs. Pickett, 2 Hill, Ch., 351 ; Johnson vs.
Britten, Dud. Eq., 28 ; 5 Rich. Eq., 519 ; 3 John's Ch., 124.]

Tlie opinion of the Court was delivered by

DuNKix, 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 (acts presented,
and is not at variance with any principle heretofore estab-
lished.

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 fatlier of the intestate,) for
§8,000. For reasons stated in the petition, the plaintiffs
were greatly surprised at this demand, and resisted the pay-
ment both before the commissioner, and in the Circuit Court.
Their defence was, that the signature of tiie intestate to the
endorsement was not genuine. Much evidence was offered,
but the commissioner concluded that the genuineness of the
iiandwriting was sustained by the preponderance of testimony,
and this conclusion was sanctioned by the presiding Chan-
cellor, February, lvS58. 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 xis. Simpson, 5 Rich. Efj., 422, it was
directed to be made to the Circuit Court.

It will be perceived, that the ground upon which the peti-
tioners rely, is the discovery of a new fact, constituting in
itsrlf 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



70 APPEALS IN EaUITY.

Tomlinson vs. Tomlinson.

was 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 con-
sequence of a want of due diligence on their part, his direc-
tion for rehearing was pro|ierly granted. The material fact,
on which the petitioners press their claim, is, that the endorse-
ment, 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 montlis after tlie 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-
tysiiip for the said W. H. Tomlinson, in the Bank of Wades-
borough. If th(ise facts be susceptible of proof, it is scarcely
necessary to say that they constitute a new and material ele-
ment 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, 185.9. 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.



APPEALS IN EaUITY. 71

Columbia, May, 1809.

that tlie note was set on foot by Wm. H. Tomlinson, and was
received by biin, the defendant, subsequent to the deatli of
the intestate. The apparent reticence of the defendant in
reference to this charge may well have influenced the judg-
ment 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 circun)stances, 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 deci-
ded. 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
Cantcy 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, constitut-
ing, 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. Whiling, 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 pur-
pose, 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



72 APPEALS IN EaUlTY.

Tomlinson vs. Tomlinson.

fact, 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 appro-
priate tribunal for inquiry and determination.

It is ordered and decreed that the appeal be dismissed.

Johnston and Wardlaw, CC, concurred.

Appeal dismissed.



APPEALS IN EaUITY. 73



Columbia, May, 1S59.



Robert C. Gillam vs. Joseph Caldwell and others, Execu-
tors J. P. Caldwell.

Same vs. Same.

Wills and Testaments — Limitation of Estates — Adminis-
tration.

The testator devised and bequeathed his estate, real and personal, to his execu-
tors, in trust, for the sole and separate use of his two daughters, each to take
one-half for life, with remainder to her issue, and should one die without
leaving issue her surviving, then her share to the surviving daughter for life,
with remainder to her issue; " but in the event that both of my daughters should
die without leaving issue surviving, then and in that case," he devised and
bequeathed his whole estate, real and personal, after some incjonsiderable
pecuniary legacies, to his brothers and sisters. The two daughters both died
unmarried and without issue. Ileld, that the limitation to the brothers and
sisters of the testator was valid.

The will containing no provision for the payment of debts — held, that they were
chargeal)le on the corpus of the estate, and not exclusively on the income to
which the daughters, as tenants for life, were entitled.

Where a testator gives no direction as to the fund out of which his debts should
be paid, they are, as between tenant for life and remaindermen of the estate,
chargeal)le not ujion the income, but upon the corpus of the estate as it
existed at the death of the testator.

BEFORE .TOIINSTON, CH., AT NEWBERRY, JULY, 1S58.

J. P. Caldwell died in October, 1848, leaving a la.st will
and testament, of which the following is a copy :

I, James P. Caldwell, of the District of Newberry, in the
State aforesaid, do make the following disposition of my
estate, to take effect at my death, as and for my last will and
testament, viz:

First. It is my will and desire that my executors, herein-
after named, shall sell my plantation lying on Indian creek,



74 APPEALS IN EaUlTY.

Gillam vs. Caldwell.

commonly called the Gracy Place, and containing about five
hundred and fifty acres, (more or less,) if in their opinion
they can obtain a reasonable price for the same; but if a
reasonable price cannot, in their opinion, be obtained for the
said tract of land, then the same shall be retained by my
executors for the benefit of my estate, until the general divi-
sion of my estate shall take place between my two daugh-
ters, as hereinafter directed.

Second, I also authorize and empower my executors to
sell my tract of land, called the Ragland tract, containing
about thirty-three acres. Also, another tract of land owned
by me, lying adjoining lands of William Prize, Burder Boo-
zer, and others, and supposed to contain between one hundred



Online LibrarySouth Carolina. Court of AppealsReports of cases in equity, argued and determined in the Court of appeals and Court of errors of South Carolina ... : December, 1844, to [May, 1846; November, 1850, to May, 1868] ... (Volume 11) → online text (page 6 of 50)