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A treatise on the pleadings in suits in the Court of chancery, by English bill online

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124. It has been said, in North Carolina, that placing the amount of
a decree in the hands of tiie master, in bank notes, is such a substan-
tial compliance with the order of the court as will save the party from
an imputed neglect or contempt, and authorize the filing ot a bill of
review. Taylor v. Person, 2 Hawks' R. 293.]

[As to deposit on filing a bill of review, see Wehh v. Pell^ 1 Paige's
C. R. 564; and 173, Rule of N. Y. Chancery.

As to the practice in Virginia upon a bill of review, see note to
Ellzley V. Lane's executors, 2 Hen. & Munf. 589 ; Quarrier v. Carter^ s
representatiies, 4 Hen. &- Munf. 242.]



S. III.] SEVERAL KINDS OF BILLS. 107

that the decree may be reviewed, and reversed in
the point complained of, if it has not been carried
into execution (Z). If it has been carried into execu-
tion, the bill may also pray the further decree of the
court, to put the party complaining of the former
decree into the situation in which he would have
been if that decree had not been executed. If the
bill is brought to review the reversal of a former
decree, it may pray that the original decree may
stand (m). The bill may also, if the original suit
has become abated, be at the same time a bill of
revivor (n) (1). A supplemental bill may likewise
be added if any event has happened which requires mQ-i
it (o)(2); and particularly if any person not a party 108

to the original suit becomes interested in the sub-
ject, he must be made a party to the bill of review
by way of supplement (p).

To render a bill of review necessary the decree Supplemental

•' bill in the nature

sought to be impeached must have been signed and "Lw!"" "^ ^^'
enrolled. If, therefore, this has not been done, a
decree may be examined and reversed upon a spe-
cies of supplemental bill, in the nature of a bill of
review where any new matter has been discovered

(l) 17 Ves. 177. (p) Sands -v. Thorowgood, Hardr.

(m) 2 Chan. Prac. 634. 104. See supra, p. 106, note, and

(n) 2 Prax. Aim. Cur. Cane. 522. 101, note.

(0) Price v. Keyte, 1 Vern. 135.

(1) Such a bill must be founded upon an affidavit of tlie discovery
of new matter, and cannot be filed witliout the special leave of the
court. Neither can it be filed wittioiit maldiig the deposit, or giving
the security required upon a bill of review. Wilkinson v. Parish, 3
Paige's C. R. 653.]

(2) Thus the bill may partake of the compound character of a bill
of review, of revivor and of supplement ; and be maintainable if it
present facts that go to the merits of the original decree. Wliiting et
al. V. The Bank of the United Stales, 13 Peters, 13, 6.



108



FRAME AND END OF THE [ChAP. I.



109



[91]



since the decree {q) (1) . As a decree not signed and
enrolled may be altered upon arehearing without the
assistance of a bill of review, if there is sufficient mat-
ter to reverse it appearing upon the former proceed-
ings (r) (2) the investigation of the decree must be



{q) 2 Atk. 40, 178; 3 Atk. 811;
Gartside v. Isherwood, Dick. 612 ;
17 Ves- 177; or, at the least, the
new matter should have been discov-
ered after the time when it could
liave been introduced into the original
cause. Ord v. JSoel, 6 Madd. 127 ;



and see Barrington v. O'Brien, 2
Ball & B. 140. See p. 106, note,
supra ; [ Wiser v. Blackly, 2 J. C. R.
488 ; Lawrence v. Cornell, 4 J. C. R.
542.]

(r) The rehearing, which is thus
far alluded to, not being sought in



Supplemental
bill in the nature
of a bill of re-
Tiew, and to
bring forward
new matter.



Petition of re-
hearing dis-
missed became
grounded oa
Hew facta.



(1) A plaintiff, or a defendant against whom a decree is made, may
obtain leave to file a supplemental bill in the nature of a bill of review,
to bring forward matter discovered after such decree, although such
matter is not capable of being used as evidence of anything previously
put in issue, but constitutes an entirely new issue. Partridge v. Us-
borne, 5 Russ. 195 ; Barnes v. Ojfer, 6 Russ. 225, note.) Thus, where
a person who is afterwards decreed to perform a contract for the pur-
chase of a timber estate, applies to the auctioneer for, atjd obtains a
written statement of the quantity of timber by a surveyor, before he
bids for the estate ; and after being decreed to perform his contract,
he discovers that the quantity of timber is much less than is repre-
sented in such statement ; the court will give him leave to file a sup-
plemental bill in the nature of a bill of review, and to apply to have
the original cause set down to be reheard, and to come on at the same
time, although his answer to the original bill does not raise any objec-
tion as to the quantity of timber. Partridge v. Usborne, 5 Russ. 195.
In this case, the purchaser adduced evidence of the auctioneer and
others to show that the auctioneer warranted the quantity of timber,
and stated that the admeasurement exhibited by him to the purchaser
agreed, with another admeasurement by another eminent surveyor,
although in reality the two materially differed. But the fact of the
warranty was controverted by the evidence of a greater number of
persons: and neither that fact nor the other circumstance above men-
tioned were adverted to in the judgment of the lord chancellor, Lord
Lyndhurst.

(2) Where in a suit for the administration of a testator's personal
estate, part of which is undisposed of, the bill sets forth the will of the
testator, made some years before his death, in which he is described as
of a certain colony, where the effects of intestates are not distributed



S. III.] SEVERAL KL\DS OF BILLS.



110



brought on by a petition of re-hearing (s) (2) : and



respect of any new matter, is ob-
tained upon certificate of counsel, 18
Ves. '323, by a petition merely, which
states the case as brought before the
court when the decree was made,
Wood V. Griffiths, 1 Meriv. 35 ; and
the grounds on which the re-hearing
is prayed, 1 Sch. & Lefr. 398. And
here it may not be improper to notice,
that the court will not, without con-
cent, 3 Swanst. 234, vary a decree
after it has been passed and entered,
«xcept as to mere clerical errors, Lane
V. Hobbs, 12 Ves. 458, Weston v. Hag-
gersion, Coop. R. 134; Hawker v.
Buncombe, 2 Madd. R. 391 ; 3
Swanst. 234 ; Tomlins v. Palk, 1
Russ. R. 475 ; or, matters of course, 7
Ves. 293 ; Pickard v. Mattheson, 7
Ves. 293 ; Newhouse v. Mitford, 12
Ves. 456, unless upon a petition of re-
hearing, or upon a bill of review, or



bill in the nature of a bill of review, 4
Madd. 32 ; Grey v. Dickenson, 4
Madd. 464 ; Brackenbury v. Brack,
enhury, 2 Jac. &, W. 391 ; Willis v.
Parkinson, 3 Swanst. 233; Brookjield
v. Bradley, 2 Sim. & Stu. 64, accord-
ing as the decree has or has not been
signed and enrolled ; and as it is sought
to have the case re-heard as originally
brought before the court, or accompa-
nied with new matter. See Text.

(s) Taylor v. Sharpe, 3 P. Wms-
371 ; 2 Ves. 598 ; Gore v. Pardon,
1 Sch. & Lefr. 234 ; 2 Jac. & W.
393. It must be remarked that
where there is new matter, a petition
to re-hear the original cause must be
presented, and be brought before the
court at the same time as the supple-
mental bill, in the nature of a bill of
review. Moore v. Moore, Dick. 66 ;
17 Ves. 178.



according to the English statute of distributions; but the bi'l prays
that the property undisposed of may be distributed according to that
statute ; and there is no allegation that the testator was domiciled in
the colony, or that the law of England is not applicable to the distri-
bution of his property, either in the bill, or in the answers, or in the
master's report, or in the evidence, or at the hearing ; and the property
is orderi'd to be distributed according to the statute ; but afterwards a
petition for a re-hearing is presented, in which those facts are alleged
as a ground for a re-hearing ; such petition will be dismissed. Neiin-
son v. Slables, 4 Russ. 210.

(2) [A petition of rehearing will be dismissed, if it suggests, as the
ground of ro-hearing, facts not alleged in the pleadings. Neiinson v.
Stables, A Russ. 210. See 112, 113, 114, and 115, Rules of N. Y.
Chanrery. A re-hearing is not a matter of course, except in the cases
provided for by rule. Travis v. Waters, 1 J. C. R. 48 ; Eastbiirn v.
fKirk, 2 lb. 317; Land v. Wickham, 1 Paige's C. R. 256; Wiser v.
Blachly,' supra. Where a decree has been entered by consent, there
can be no re-hearing. Monell v. Lawrence, 12 J. R. 521. Nor will it
be granted after a decree to account, exceptions to a master's report
taken and disallowed, acquiescence of the party therein, and a final
report made up and confirmed. Ridg. Lap. & Scho. 602.]

See form of such a petition, 2 Harr. Chan. (ed. 1790) 32. The peti-



110 FRAME AND END OF THE [ChAP. L

the office of the supplemental bill in'nature of abill of
review, is to supply the defect which occasioned the
decree upon the former bill (t) (1). It is necessary to

(0 Standish v. Radley, 2 Atk. 177.

tion, it seems, should be presented previously to filing the supplemen-
tal bill.

Rehearings rest in sound discretion of the court, not of right. Ap-
plication for rehearing on ground of newly discovered evidence is
mainly govorned by some considerations as apply vi^here leave is asked
to file supplemental bill after publication of proofs and before hearing,
in order to bring up newly discovered evidence ; or where leave is asked
after decree to file bill of review, or bill in the nature of a bill of review,
on ground of newly discovered evidence. {Daniel v. Mitchell, 1 Story's
R. 200, 198.)

Rehearings have been exceedingly rare in the circuit courts of the
United States ; and ought to be, unless some plain, obvious, palpable
error, omission or mistake in something material to the decree is brought
to the notice of the court, which had before escaped its attention.
The Supreme Court of the United States habitually refused rehearings
after it has pronounced its judgment. The English practice has
guards that do not exist here, where counsel and client are brought
into immediate and constant contact. But such as is the practice in
England it is the source of almost interminable delays and inconve-
niences. When a cause is once fully argued and an appeal lies from
the decree, there is ordinarily no reason for a rehearing here on the
original evidence. The application to be maintainable the petition
should pray leave to file supplemental bill, to bring forward new evi-
dence and for a rehearing of the cause at the time when the supple-
mental bill should also be ready for a hearing.

To bring forward new evidence unless it be an exhibit or some doc-
umentary proof omitted by slip, to be read or proved on final hearing,
must be by supplemental bill. The new evidence to found such bill
should be such, as, if unanswered, would require a reversal of the
decree. New oral testimony to corroborate evidence on one side or
contradict it on the other on points in issue, is insufficient ; and if the
evidence was such as the party might by due diligence have originally
introduced, or where he had full means of knowledge in his reach, the
bill will not be admitted after an interlocutory decree. Jenkins v.

Eldredge, 3 Story's R. 304-7, 310, 311, 314, et seq. 299.

(1) [See the form of such a bill, Willis, 376. Such a bill cannot

be filed, where a party could have filed an ordinary supplemental bill,

but waits doing so until after a decree. Pendleton v. Fay, 3 Paige's

C. R. 204.]



S. III.] SEVERAL KINDS OF BILLS. 110

obtain the leave of the court to bring a supplemental
bill of this nature (ti), and the same affidavit is re-
quired for this purpose as is necessary to obtain
leave to bring a bill of review on discovery of new
matter (x) (1). The bill in its frame nearly resembles

(m) Order, 17 Oct. 1741, Ord. in adopted by tlie court in relation to

Cha. Ed. Bea. 366 ; 2 Atk. 1.39, note ; bills of tliis kind, see Ord v. Noel, 6

3Atk.811; 2Ves. 597, 598; Bridge Madd. 127; Bingham v. Dawson, 1

V. Johnson, 17 Dec. 1737. Jac. R. 243; Wilkinson v. Parish,

{x) As to the general principles 3 Paige R. 653.

(I) Where a decree is made against executors, not charging them
with what they might have received, but for their wilful default, but
afterwards a bill is filed^ which seeks so to charge them, it is a sup-
plemental bill in the nature of a bill of review, and must not be
filed without the leave of the court. Hudson v. Ball, 11 Sim. '456; 1
Phil. 177.

And where a vendor contracts to sell leasehold premises for the re-
mainder of a term granted by a certain lessor, and the specific per-
formance of the contract is decreed, the purchaser may not, without
the leave of the court, file a supplemental bill, slating the fact that the
premises called by the name by which they are designated in the con-
tract partly consist of premises comprised in a lease granted by another
lessor, and praying a declaration that tiie premises comprised in both
leases are comprised in the contract, and that the contract may be spe-
cifically performed accordingly. For where a supplemental bill is
brought to supply a defect in the pleadings and decree in the original
cause, and the decree upon it can only be obtained on a rehearing of
the decree in the original cause; such bill is a supplemental bill in
the nature of a bill of review, which ought not to be filed without the
leave of the court. Davis v. Black, 6 Beav. 393.

Where a supplemental bill seeks a species of relief which may be
inconsistent with the relief afforded by the decree in the original suit,
though it be only in one respect, and that in re;:ard to the transactions
of a few days, the bill is irregular, if filed without leave of the court ;
and the defendants are not precluded from insisting on the irregular-
ity, by having answered the bill ; because, although the defendants
should waive the objection arising from the want of leave to file the
bill, yet the court itself would be concerned to prevent inconsistent
decrees from being made. Such an irregularity may, however, be
corrected by a stay of the proceedings, without prejudice to the plain-
tiff's right to file anew bill, or to apply for leave of the court to file a
bill of review.



ture of a bill of
review



HI FRAME AND END OF THE [CuAP. I.

a bill of review, except that instead of praying that
the former decree maybe reviewed and reversed, it
prays that the cause may be heard with respect to
the new matter made the subject of the supple-
mental bill, at the same time that it is re-heard upon

112 the original bill, and that the plaintiff may have such

[92] relief as the nature of the case made by the supple-
mental bill requires (y).

3. Bills in the na. g jf j^ dccrcc is made ao^ainst a person who had

ture of a bill of n , r

no interest at all in the matter in dispute, or had not
such an interest as was sufficient to render the de-
cree against him binding upon some person claiming
the same or a similar interest (z), relief may be ob-
tained against error in the decree by a bill in the
nature of a bill of review (a) (1). Thus, if a decree
is made against a tenant for life only, a remainder-
man in tail or in fee cannot defeat the proceedings
against the tenant for life, but by a bill showing the
error in the decree, the incompetency in the tenant
for life to sustain the suit, and the accruer of his

(y) See 17 Ves. 177, 178. See (z) Brown v. Vermuden, 1 Ca. in
note, p. 110, supra. Cha. 272.

(a) See 17 Ves. 178.

This point arose in a case where the plaintiffs would have been en-
titled, in the original suit, to interest on the amount due to the estate
of a deceased partner whom they represented ; but by a supplemental
bill they sought for a declaration that they were entitled, at their optimi,
either to participate in the profits made by the defendant, the surviving
partner after the death of the deceased partner, or to be allowed interest
upon the balance due to the deceased partner's estate. Toulmin v.
Copland, 4 Hare, 41.

(1) See form of bill. [Willis, 378.]

It lies only after final decree, not where the subject is still before the
court in Jieri upon master's report in pursuance, and of an interlocutory-
decree. (Jenkins v. Eldridge, 3 Story's R. 302, i.99. See p. 106,
note, supra.)



S. III.] SEVERAL KINDS OF BILLS. 112

own interest, and thereupon praying that the pro-
ceedings in the original cause maybe reviewed, and
for that purpose that the other party may appear
to and answer this new bill, and the rights of the
parties may be properly ascertained (1). A bill of
this nature, as it does not seek to alter a decree
made against the plaintiff himself, or against any
person under whom he claims, may be filed without
the leave of the court (b) (2).

4. If a decree has been obtained by fraud it may ^ Biiis to im.

J J peach decreea

be impeached by original bill (c) without the leave *'"'*'^*'"^:^-.rt
of the court (d)\ the fraud used in obtaining the de- mg-j
cree being the principal point in issue, and neces-
sary to be established by proof before the propriety
of the decree can be investigated. (3). And where

(b) Osborne v. Usher, 6 Bro. P.C. 4 Tb. 97.] In 3 P. Wms. 1 Jl, it is
20, Tom!. Ed. said that a decree in such case may

(c) 1 p. Williams, 7.3G; Loyd v. be set aside on petition ; but this was
Mansell, 2 P. Wms. 7.3 ; 3 P. Wma. prob.ibly meant to extend only to the
111 ; Wichalse v. Short,3 Bro P. C. case of a decree not signed and eri-
558,Toml. Ed. ; and see Kcmiecli/ v. rolled, and wliere the fact of fraud
Daly, 1 Sch. & Lefr. 355; and could not be controverled. See Mus-
Giffurd V. Hort, 1 Sch. &. Lefr. 3S6. sel v. Morgan, 3 Bro. C. C. 74 ; 2
[Davoue v. Fanning, 4 J. C. R. 199 ; Sch. & Lefr. 574.

Murray v. Murray, 5 lb. 60; Wil- (d) 3 Alk. 811 ; 1 Ves. 120; Ca.
Hams V. Fowler, 2 J. J. Marshall's Temp. Talbot, 201.
R. 405 ; Edmonson v. Mosly's heirs,

(1) [And it would seem, where a bill by a vendor of land, seeking a
specific performance of the contract, is dismissed on account of a de-
fect in the title, and he can afterwards make title, that he may come
in again by an original bill in the nature of a bill of review. Hepburn
V. Dunlop, 1 Wheat. 179, 195.]

(2) In Quick V. Lilly, ^ Gnen'sC. R. Ncw-Jereey, 257-8, 255, it was
held on a petition for leave to file such bill, that to justify it, on gronnd
of newly discovered matter, the evidence discovered must be new, and
material. The new matter must be such as, if unanswered in point
of fact, would clearly entitle party to a decree, or raise a case of so
much nicety and difficulty as to be a fit subject of judgment in a cause.

(3) See form of bill, [Willis, 381.]

The bill to impeach or sut aside judgment or decree for fraud, must



113 FRAME AND END OF THE [ChAP. I.

a decree has been so obtained the court will restore
the parties to their former situation, whatever
their rights may be {e). Beside cases of direct
fraud in obtaining a decree, it seems to have been
considered, that where a decree has been made
against a trustee, the cestui que trust not being be-
fore the court, and the trust not discovered, or
against a person who has made some conveyance
or encumbrance not discovered, or where a decree
has been made in favor of or against an heir,
when the ancestor has in fact disposed by will of
the subject-matter of the suit, the concealment of
the trust, or subsequent conveyance, or encum-
brance, or will, in these several cases, ought to be
treated as a fraud (f). It has been also said that

114 where an improper deCree has been made against
an infant, without actual fraud, it ought to be irn-

[94] peached by original bill (g)(1). When a decree

(e) Birne v. Hartpole, 5 Bro. P. C. other it will be vacated. Stevens v.

197, Toml. Ed. ; and see Powell v. Guppy, 1 Turn. R. 178.
Martin, 1 Jac. & W. 292. And it (/) See Style v. Martin, 1 Ca.

may be remarked, that where the Cha. 150; Earle of Carlisle v. Goble,

enrolment of the decree by the one 3 Cha. Rep. 94.
party is a fraud or surprise upon the (g) I P. Wras. 737 ; 2 Ves. 232.

set forth precisely the particular circumstances of fraud. (Pendleton
V. Galloivay et al. 9 Ohio R. 178.)

In a suit in Ohio, on a judgment in Virginia, and upon plea that it was
obtained by fraud, it was held that it could only be directly impeached
in chancery. The general doctrine of the books is that fraud avoids
all judicial acts. But even as to foreign judgments the inclination
now is to hold them conclusive. {Martin v. Nicolls, 3 Simon R. 458.)
A fortiori a judgment of a sister state which has all the force and va-
lidity of a domestic judgment cannot be impeached collaterally. (An-
derson.v. Anderson, 8 Ohio R. 108, et seq.)

(1) A fortiori where there was fraud; a decree against minor de-
fendants, rendered upon the answer of their guardian ad litem, may
be thus impeached and reversed. Massie v. Matthew's executors and
Wallace, 12 Ohio R, 351.



S. III.] SEVERAL KINDS OF BILLS. 114

has been made by consent and the consent has
been fraudulently obtained, the party grieved can
only be relieved by original bill (h).

A bill to set aside a decree for fraud must state
the decree, and the proceedings which led to it, with
the circumstances of fraud on which it is impeached
The prayer must necessarily be varied according to
the nature of the fraud used, and the extent of its
operation in obtaining an improper decision of the
court.

5. The operation of a decree signed and enrolled pcnd^or^avord"
has been suspended on special circumstances, or '^''*''"^'''-
avoided by matter subsequent to the decree, upon a
new bill for that purpose. Thus during the troubles
after the death of Charles the First, upon a decree
for a foreclosure in case of non-payment of principal,
interest and costs due on a mortgage, the mort-
gagor at the time of payment being forced to leave
the kingdom to avoid the consequences of his en-
gagements with the royal party, and having re-
quested the mortgagee to sell the estate to the best
advantage and pay himself, which the mortgagee
appeared to have acquiesced in ; the court, upon a
new bill, enlarged the time for performance of the
decree, upon the ground of the inevitable necessity
which prevented the mortgagor from complying
with the strict terms of it, and also made a new
decree on the ground of the matter subsequent to
the former decree (i).

(h) Ambl. 229. [And see Monell Whorewood, 1 Ca. in Cha. 250 ;

V. Lawrence, on appea], 12 Johns. R. Wakelin v. Walthal, 2 Ca. in Cha. 8.

.521.] The embarrassments occasioned by

(») Cocker v. Bevis, 1 Ca. in Cha. the civil war in the reign of Charles

61. See also Vcnahles v. Foyle, 1 I., and the stale of affairs after his

Ca. in Cha. 3 ; and Whorewood v. deatii, before the restoration of



115 FRAME AND END OF THE [ChAP. L

[95] 6. Sometimes, from the neglect of parties, or

;iii8 t
reea
ecution.



6. Bills to carry , . ■. . ., .

decrees into ex somc otiior cdiise, it Decomes impossible to carry a



decree into execution without the further decree of
the court (k). This happens, generally, in cases
where the parties having neglected to proceed upon
the decree, their rights under it become so em-
barrassed by a variety of subsequent events, that it
is necessary to have the decree of the court to settle
and ascertain them. Sometimes such a bill is ex-
hibited by a person who was not a party, nor claims
under any party, to the original decree, but claims
in a similar interest, or is unable to obtain the de-
termination of his own rights till the decree is car-
ried into execution (I). Or it may be brought by or
against a person claiming r.s assignee of a party to
the decree (m). The court in these cases m gene-
ral only enforces, and does not vary, the decree ;
but on circumstances it has sometimes considered
116 the directions, and varied them in case of a mistake

[96] (n) (1); and it has even on circumstances refused

Charles II. occasioned many extra- (k) 2 Chan. Rep. 128 ; 2 Vern.

ordinary applications to the court of 409.

chancery for rehef, and perhaps in- (Z) See peculiar case of Rylands

duced the court to go far in extend- v. Latouche, 2 Bligh, P. C. 566.

ing rehef ; but there were many cases (m) Organ v. Gardiner, 1 Ca. in

of extreme hardship in which it was Cha. 231 ; Lord Carteret v. Paschal,

deemed impossible, consistently with 3 P. Wms. 197; S. C. on appeal, 2

established principles, to give relief; Bro. P. C. 10, Toml. Ed.; Buiks v^

and all cases determined soou after Sinks, rep. 2 Bligh, P. C. 593, note,



Online LibraryJohn Mitford RedesdaleA treatise on the pleadings in suits in the Court of chancery, by English bill → online text (page 19 of 61)