Unknown County MsArchives Court.....Hoggatt, Vs. Hunt 1834
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 7:53 pm

Source: Reports Of Cases - Mississippi
Written: 1834

June Term 1826.

JAMES HOGGATT'S admr. & admx. vs. ABIJAH HUNT'S Executors. 
SAME vs. A. HUNT'S Executors and E. SMITH.

As a general rule on an appeal from the decree of the Chancellor to the 
supreme court, newly discovered evidence cannot be admitted. 

Whether the Chancellor will grant a re-hearing, is discretionary with him, and 
his refusal to grant a re-hearing, cannot be reviewed upon an appeal. 

It is usual to grant a re-hearing upon petition signed by two counsel.

The intervention of a sheriff's deed relieves the case from the rule of law 
which as between vendor and vendee, declares the continued possession of the 
vendor ipso facto a fraud.

OPINION OF THE COURT — by his HONOR JUDGE CHILD. 

These cases are appeals from decrees of the superior court of chancery, in the 
Western District.

A preliminary question presented for consideration, and agitated in the 
argument at the bar, will be deposed of in the first place. It arises out of 
an attempt to introduce newly discovered evidence, on an appeal from a decree 
of the chancellor.

I am very clearly and decidedly of opinion, that this cannot be admitted, 
unless under special circumstances, and in no case to vary the aspect of the 
cause on its substantial merits, from the attitude and proofs exhibited on the 
hearing before the court below. On an appeal to the King, in Parliament, no 
new evidence is admitted in the House of Lords, upon any account. This being a 
distinct jurisdiction, in which it differs very considerably from those 
instances, wherein the same jurisdiction revises and corrects its own acts, as 
in re-hearings and bills of review, for it is a practice unknown to the 
English Law, when a superior court is reviewing the sentence of an inferior, 
to examine the justice of the former decree by evidence that was never 
produced below. Permission to file exhibits referred to in bills and answers, 
and admitted on the hearing below, together with testimony oral or otherwise, 
to prove their execution, may perhaps form exceptions to this rule. It has 
also been argued that there is no error in the record, because the superior 
court of chancery refused a petition for re-hearing, signed by two respectable 
counsel, and on grounds stated. When a petition of re-hearing is signed by two 
counsel, such credit is given by the court to their opinion, that the cause 
ought to be re-heared,—as to order it to be set down. It is discretionary in 
the judge, whether he will allow a re-hearing,—and Lord Thurlow on one 
occasion refused it, but in general the chancellor considers it his duty to re-
hear when called upon so to do, to save the expense and delay of an appeal.

I am therefore inclined to the opinion, that no appeal lies from a decision of 
the chancellor on a discretionary matter, refusing a petition for re-hearing. 
Upon the merits of the controversy, however, as it stood before the 
chancellor, upon bills, answers, exibits, and depositions, weightier 
considerations arise. The discrepancy of the answers particularly in those of 
James Bosley and Mary Bosley - together with the strange confliction of 
evidence, and the novel and delicate situation of witnesses and defendants 
present doubts and difficulties, to my mind almost insurmountable.

Unaccustomed as I an, to determine facts, the weight of evidence, to decide 
upon the credibility of apparently interested witnesses, and to reconcile 
inconsistencies, I cannot undertake to pronounce a final decree, conclusive on 
the rights of the parties, with satisfaction to myself, without the 
intervention of a jury. The decree of the chancellor will therefore be opened, 
and the cause remanded to the superior court of chancery, with directions, to 
make up issues to be tried by a jury, before the same court, or the circuit 
court of Adams county.

1st, Whether there was an agreement between James Hoggatt and James Bosley to 
reconvey to Bosley the slaves in controversy, purchased by Hoggatt at 
sheriff's sale, upon Bosley's reimbursing the purchase money? and if so,

2d, Whether the mony has ever been paid?

Should these issues be found in the affirmative for the complainants — then no 
further inquiry will be necessary,—but if they should be found in the 
negative, in favour of the defendants in interest, as such, in that event, the 
question of notice will become essential.

It is expressly alleged in the complainants amended bill, that they are bona 
fide mortgages, without notice of Hoggatt's claim. This is denied by Bosley's 
answer, and there is no evidence to support the bill in this respect—this part 
of Bosley's answer cannot be considered as matter in evidence, because it is a 
direct denial of the allegations of the amended bill. Bosley and Hoggatt 
cannot stand in the immediate relation of vendor and vendee on account of the 
intervention of the sheriff's deed, and the case on that account is redeemed 
from that operation of the rule of law, that an absolute bill of sale where 
possession does not bona fide follow and accompany the deed, is ipso facto 
fraudulent and void.

It is therefore further directed, that in the event of the two first issues 
being found for the defendants, that an issue be made up to be tried by the 
same jury. Whether at the time of extending the credit, or of the execution of 
the mortgage deeds in the bills mentioned, the complainants had notice of the 
claim of James Hoggatt. This will essentially aid and assist the conscience of 
the court, in settling the question of possession, in all its fraudulent 
bearings upon subsequent creditors. On the trial of said issues, the bill of 
the complainants to be read, not as evidence; the answers, exhibits, and 
depositions, taken in the cause to be read as evidence, with such other legal 
testimony as may be adduced by either party-oral, or on commission, which are 
directed to be reopened for that purpose, for the period of six months; and 
moreover, as it appears by the report of the clerk, that a part of the 
mortgaged property is in possession of persons not made parties to the bill, 
and as the decree of the chancellor authorises and empowers the officer to 
seize upon and sell the mortgaged slaves wherever they may be found; that all 
persons in interest, as defendants, disclosed by the report of the clerk, will 
have leave to come in, file their answers, and assist in the defence, in order 
to prevent circuity of action, and multiplicity of suits, and render the 
decree conclusive of the rights of all parties in interest. 

Judge Black concurred.

Additional Comments:
Reports of Cases Adjudged in the Supreme Court of Mississippi; 1818 - 1832; 
By R. J. Walker, Reporter of the State. Natchez: Printed at the Courier and 
Journal Office, 1834.

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