of the purchasers. There was also testimony upon the subject of arrangements making him bound to pay the mortgage, but we do not think that point made out by the proofs. The decree was modified so as to require the property in town 10 to be sold last instead of first. Gould appeals. Various objections are made bearing chiefly on questions of practice. The objection that the proceedings were not enrolled is unfounded. It rests on the claim that certain costs had not been taxed, and the bills were not included in the enrollment. This might have been a good reason for having the bills subsesequently included among the enrolled papers, but it could not undo the enrollment actually made.

The objection that the decree has not been performed is not applicable. Without deciding how far rule 101 abrogates the old practice of substituting security for performance, it is enough in the present case to point out that under the decree as made there was nothing for Mickle to perform. Until the land should be sold, and a deficiency reported, there was no personal liability which could be enforced against him. Johnson v. Shepherd, 35 Mich. 115; Howe v. Lemon, 37 Mich. 164; Gies v. Green, October, 1879.

It is also very questionable how far any one but Maxfield, the complainant in the original bill, could set up any such defect if it existed. He is the only person to whom the decree gave affirmative relief, and the only one, therefore, who could demand its enforcement. If appealed from, he would very clearly have been the party to be provided for by the appeal bond. We have no doubt that Gould cannot raise the question concerning the security under rule 101, nor object that the security was not given earlier.

Neither have we any doubt that the case is a proper one for a bill of review. Whatever may be the technical rule concerning testimony at large, as open to consideration on such a bill under the English practice, it is very clear in our opinion that a mortgage or other security which is set forth and referred to in the bill and made the ground of relief, is a necessary part of the record. It was not denied in the answer, and therefore needed no formal proof. Rule 56. By reference it was so far incorporated into the bill that a variance in the document itself from the description in the bill would not exclude it when produced and given in evidence. Story Eq. Pl. § 800 a; 1 Dan. Ch. Pr. 600. And it was held in Weld v. Bonham 2 S. & S. 91, that such a document

was so much a part of the bill that it could be looked into on demurrer.

It has been held in the court of chancery and by this court repeatedly that there can be no decree without producing the securities or giving adequate reasons why they cannot be forthcoming. Bailey v. Gould, Walk. Ch. 478; Young v. McKee, 13 Mich. 552; Bassell v. Hathaway, 9 Mich. 28; Hungerford V. Smith, 34 Mich. 300.

The defendants in the original suit had a right to suppose that no decree would be made contrary to the terms of the mortgage, and the court was bound, on the application of Mickle, within a reasonable time to grant him leave to have this error rectified. To deny such an application would have been contrary to equity. Sericen v. Hursh, June, 1878; Sheldon v. Hawes, 15 Mich. 519; Harris v. Dietrich, 29 Mich. 366; Johnson v. Shepherd, supra.

The record of the mortgage, showing the order in which the premises were to be sold, would remove any ground of hardship-if there could be any such ground taken under these circumstances-on the part of subsequent encumbrancers or purchasers. They took subject to this provision, as part of the contract; and so long as the contract was thus explicit, nothing but a distinct arrangement to the contrary could authorize any change to be made. It did not depend on implied equities, but upon express agreement, and it could not under such circumstances be important to know what considerations brought it about. It appears from the proofs that it was made because Mickle was an accommodation signer of the securitics, but if the proof had failed on this point, it would not have altered the contract by which all parties were bound.

The testimony fails to show any agreement by Mickle to change the preferences. It is insisted, however, that the evidence shows that he has no interest in maintaining them, and therefore no right to complain of the decree. We do not think this is so.

It is to be borne in mind that, although complainant in a bill of review, his position in the decree, both as made and as sought to be corrected, is that of a defendant and not complainant. He is not in such a position that parting with all of his rights would put him out of the case, or abate the suit; and, whatever may have been done with any of his interests, he is endeavoring to put the decree in the shape it should

have been in if rightly decided on the proof and record. There is no practice, so far as we have discovered, which could introduce into the controversy any rights accruing after the decree, except by some affirmative pleading in the shape of a bill, original or supplemental, whereby the new parties should be brought before the court. It cannot generally be necessary to bring in new parties whenever a defendant parts with his interests, nor can he, by disposing of them, step out of the position of defendant who, when once lawfully impleaded, must continue to be a defendant, and to represent, usually for the purposes of the suit, the interests he originally represented. But in this case he retains a part of the property, and is responsible on his covenants for other portions, and those to whom he conveyed may fairly expect him to look to the decree in their behalf as well as in his own. If he continues as a defendant at all he is interested in having the mortgage foreclosed according to its terms, and the court is bound to adhere to them. As already remarked, the purposes which induced the preferred order of disposal are not important to be discussed when the contract has expressed the agreement of all the parties to it.

As Mickle has not appealed from the decree made on the bill of review, and as Gould is the only appealing party, the only question is whether the decree has been altered in prejudice of his rights. We think that so far as Gouid is concerned the alternative is a proper one, and in accordance with the terms of the mortgage; and inasmuch as the whole supplemental litigation has been maintained by him in opposition to the terms of the mortgage, which bound his lands, we think costs were properly imposed against him.

We have considered the case in the light of the evidence introduced on behalf of Gould, and in view of the issues he was allowed to raise by his answer; and it is therefore unnecessary for us to decide how far these issues were admissible, since they do not change the result. But without discussing the practice at length we deem it proper, in view of our own previous rulings on the subject, to suggest that in adopting the rules concerning bills of review and rehearing, which are much less liberal than the English practice in some respects, it has not been our understanding that a party loses any right by filing a bill of review that he would have had under the English practice on a rehearing.

We have required leave to be granted in all cases, and we

have held that the only distinction between the two is that one precedes and the other follows the enrollment. As an enrollment can always be had very shortly after the decree is entered, if we confine bills of review within narrower limits than rehearings, we should cut off in a very summary way substantial rights. Where relief is sought for error in the proceedings, we see no reason why the rehearing should be any fuller before than after enrollment, if granted at all. The requirement that leave must be granted, and the settled practice forbidding rehearings without adequate reasons, are a sufficient safeguard against abuse.

Under the English practice there were cases where it was a matter of course to open decrees, and the time within which it could be done with leave-and sometimes without-was extended to 20 years and possibly longer. Where either is allowed on newly discovered evidence it stands necessarily on a somewhat different footing than where complaint is made of error confined to the case already made. In addition to the cases before cited it may be convenient to refer to some others, which, although not precisely in point here, indicate the general views we have had occasion to express on similar questions. Clark v. Huron County Circuit Judge, 40 Mich. 166; Thompson v. Jarvis, 40 Mich. 526; Ryerson v. Eldred, 18 Mich. 490, 23 Mich. 538; Taylor v. Boardman, 24 Mich. 286, 25 Mich. 527; Case v. Case, 26 Mich. 495; Adams v. Field, 25 Mich. 16; Moote v. Scriven, 33 Mich. 500; Brewer v. Dodge, 28 Mich. 359; Maynard v. Perreault, 30 Mich. 160.

We think that no practice should prevail which will deprive courts of equity of any of the facilities for doing justice which they formerly had, and by placing all these revisory proceedings on the same substantial footing there is less danger of sacrificing right to technicality.

We think the decree should be affirmed, with costs. (The other justices concurred.)

EDWARD DOYLE and others vs. THOMAS M. MIZNER
and others.

Filed November 29, 1879.

The rule that one dealing with a corporation is estopped from denying its existence will not be applied where no new rights have intervened from such dealing, and such recognition is brought about through fraudulent transaction carried on for the very purpose of entrapping party into the action upon which such recognition is based. To create a corporation under the general laws the statutory requirements must be strictly complied with, and an attempt to create a manufacturing corporation, by the filing of an unacknowledged certificate, is a mere nullity. The acknowledgment is, under section 2839, Comp. L., an essential requisite. In certifying a copy of articles of incorporation, filed in his office, the secretary of state should give a copy of the whole instrument, including the certificate of acknowledgment. His certificate, to the conclusion that the instrument was acknowledged, amounts to nothing. Chattel mortgage in controversy in this case held void for want of authority in partics executing the same.-[ED.

Error to superior court of Detroit.

Moore & Moore, for plaintiffs in error.

E. E. Kane and Moore, Canfield & Warner, for defendants in error.

CAMPBELL, C. J. Doyle brought suit to recover for the forcible removal and disposal of certain goods claimed to be his property, and taken from his possession by defendant Kane, under color of a chattel mortgage purporting to be made by Mizner and Gray, as president and secretary of the Detroit Chemical Works. This mortgage bore date April 10, 1875, and purported to cover the entire property and credits of the company, which were quite valuable if owned at all, and all future acquisitions, to secure $312.23, payable on demand, to Kane, as trustee, to pay certain debts therein named, and authorized him to take possession whenever he should deem himself insecure. He took possession at once, against Doyle's protest.

The case was before us at the January term, when we reversed a judgment, which had been rendered against Doyle, under instructions which took the case from the jury. We did not, therefore, consider all the points raised further than to hold that Kane was not on any better footing than his co-defendants, and that Doyle's case, if true, made out a gross fraud. 40 Mich. 160. On a new trial the whole facts were again discussed, and a judgment rendered for defendants, of which Doyle again complains. The case as now presented in addition to various questions and rulings