CH. XXXIV. § 5. When bill of review cannot be brought. Form of bill of review. Prayer. Where twenty years have elapsed from the time of pronouncing a decree, which has been signed and enrolled, a bill of review cannot be brought,' unless the plaintiff was under disability; and after a demurrer to a bill of review has been allowed, a new bill of review, on the same ground, cannot be brought.3 In a bill of this nature, it is necessary to state the former bill and the proceedings thereon, the decree, and the point in which the party exhibiting the bill of review conceives himself aggrieved by it, and the ground of law or new matter discovered, upon which he seeks to impeach it. If the decree is impeached on the latter ground, the bill must state the leave obtained to file it, and the fact of the discovery. The bill may pray simply, that the decree may be reviewed and reversed in the point complained of, if it has not been carried into execution." If it has been carried into execution, 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. If any person not a party to the original suit has become interested in the subject-matter, he must be made a party to the bill of review. 1 Ld. Red. 88, 204; Smythe v. Clay, 1 Bro. P. C. ed. Toml. 453; Sherrington v. Smith, 2 id. 62; Edwards v. Carroll, ib. 98; Lytton v. Lytton, 4 Bro. C. C. 441, 458. The twenty years are to be computed from the date of the decree, and not from the time of the enrolment. Deloraine v. Brown, 3 Bro. C. C. 621 n., 640; Scarisbrick v. Lord Skelmersdale, 4 Y. & C. 79, 106. This limitation of twenty years does not apply to persons having contingent interests, or not existing, or being under disabilities. Wyatt P. R. 98; Kay v. Watson, 17 Ohio, 27; Ld. Red. 205, n. (b). In the United States Courts, bills of the face of the bill that it is so, or that Mitchell v. Berry, 1 Met. (Ky.) 602; But it seems to be a general rule, that a supplemental bill for newly discovered matter should be filed as soon after the new matter is discovered as it reasonably may be. Story Eq. Pl. § 423. If, therefore, a party proceeds to a decree after the discovery of the facts upon which the new claim is founded, he will not be permitted afterwards to file a supplemental bill in the nature of a bill of review founded on those facts; for it was his own laches not to have brought them forward at an earlier stage of the cause. Pendleton v. Fay, 3 Paige, 204; Dias v. Merle, 4 Paige, 259; Gullett v. Housh, 7 Blackf 52; Ridgeway v. Toram, 2 Md. Ch. Dec. 303; Hughes v. Jones, ubi supra; Story Eq. Pl. § 423. But where there has been no laches, a petition asking leave to file a supplemental bill in the nature of a bill of review, may be filed at any time before the decree is enrolled. Ridgeway v. Toram, 2 Md. Ch. Dec. 289. 2 Ld. Red. 205, n. (b). 3 Dunny v. Filmore, 1 Vern. 135; Pitt v. Earl of Arglass, ib. 441. 4 Turner v. Berry, 3 Gilman, 549; Randon v. Cartwright, 3 Texas, 267. 5 Groce v. Field, 13 Geo. 24. 6 Henderson v. Cook, 4 Drew. 306. 7 Perry . Phelips, 17 Ves. 173, 177. 8 Story Eq. Pl. § 420; Dexter v. Arnold, 5 Mason, 308, 309; Ld. Red. 88-90. § 5. Petition for a where de cree not signed and rehearing, If the decree has not been signed and enrolled, it is, as we have CH. XXXIV. seen, impeached by a bill in the nature of a bill of review. As a decree not signed and enrolled may be altered upon a rehearing without a bill of review, a petition for a rehearing must be presented and be brought on with the bill in the nature of a bill of review; and the office of the latter is to remedy the defect which occasioned the decree upon the former bill.3 The bill in its frame nearly resembles a bill of review, except that, instead of praying that the former decree may be reviewed and reversed, it prays that the cause may be heard, with respect to the new matter, at the same time that it is reheard upon the original bill. 6 5 enrolled. Form of bill in the nature of bill of re view. Prayer. which bill in nature of bill lie. A bill in the nature of a bill of review is necessary where, a Cases in decree having been made directing the usual accounts against a trustee, it is afterwards sought to charge him with what he might of review will have received but for his wilful default; and on the application for leave to file such a bill, it is only necessary to make out a prima facie case against the trustee; and where a person, who has been served with notice of a decree, considers himself aggrieved thereby, but is unable to raise the question under the pleadings in the cause, he should apply for leave to file a bill in the nature of a bill of review. Where the grantee of an annuity obtained a decree, directing accounts and authorizing a receiver to Hodson v. Ball, 11 Sim. 256, 443; Singleton v. Singleton, 8 B. Mon. 340. A bill of review defective in frame may sometimes be sustained as a cross-bill. Welf. Eq. Pl. 239; Coop. Eq. Pl. 95; Ld. Red. 89, 90. 1 Lewellin v. Mackworth, 2 Atk. 40; Standish v. Radley, ib. 178; Gartside v. Isherwood, 2 Dick. 612; ante, p. 1575; Perry v. Phelips, 17 Ves. 173, 177; Wortley v. Birkhead, 3 Atk. 809; Story Eq. Pl. § 422; Pendleton v. Fay, 3 Paige, 204; Ld. Red. 91; Singleton v. Singleton, 8 B. Mon. 340; Dausman v. Hooe, 3 Wis. 466. 2 Ante, p. 1472. If the objection is upon matter of law apparent, or, a mistake in law to be collected from all the pleadings and evidence, and the decree has not been signed and enrolled, it is the subject of a rehearing, and there is no occasion for a bill in the nature of a bill of review. Story Eq. Pl. § 421, and note; Pendleton v. Fay, 8 Paige, 204; Wiser v. Blachly, 2 John. Ch. 488; Ld. Red. 90. 3 Moore v. Moore, 1 Dick. 66; 2 Ves. S. 596, 598; Perry v. Phelips, ubi sup. ; Bingham v. Dawson, Jac. 243; Purcell v. Manning, 3 Jur. N. S. 1070, V. C. S.; Head v. Godiee, Johns. 536; 6 Jur. N. S. 495; ante, p. 1474; and see Jopp v. Wood, 2 De G., J. & S. 323, 326. The distinction between a bill of review and a bill in the nature of a bill of review, though important in England, is not felt in the prac tice of the Courts of the United States, 4 Ld. Red. 92; Perry v. Phelips, ubi 5 Hodson v. Ball, 11 Sim. 456, 461; 1 Phil. 177, 179: Partington v. Reynolds, 6 W. R. 615, V. C. K. 6 Partington v. Reynolds, ubi sup. 7 Kidd v. Cheyne, 18 Jur. 348; S. C. nom. Ex parte Kidd, 2 W. R. 316, V. C. W. As to service of notice of the decree, see ante, pp. 432-438. CH. XXXIV. keep down the arrears, the costs of the annuitant to be added to § 5. his security, it was held that the grantor could only impeach the grant of the annuity by a bill of review, or in the nature of a bill of review.1 Deposit necessary on filing bill of review; nature of bill of review. Extent to which decree 6 No bill of review will be admitted unless the party exhibiting the same has first deposited the sum of 50%. with the Registrar, as a pledge to answer such costs and damages as may be awarded to or bill in the the opposite party, in case the bill is dismissed. And no bill in the nature of a bill of review, grounded upon new matter discovered after the decree, will be admitted, unless the party exhibiting the same has first deposited with the Registrar so much money as, together with the deposit by the rules of the Court to be made on obtaining a rehearing of the cause in which the decree was pronounced, will make up the sum of 507., as a pledge to answer such costs and damages as may be awarded to the opposite party in case any are awarded at the hearing of the cause on such new bill. Where it was accidentally omitted to make the deposit at the time of filing the bill, it was allowed to be made subsequently." Filing a bill of review does not stay the execution of the decree which is complained of; and before any bill of review, or other bill to reverse or alter a decree, can be filed, the decree must be review can be first obeyed and performed: except that, if any act is decreed to be done which extinguishes a right at Common Law: as, the making of an assurance or release, acknowledging satisfaction, cancelling of bonds or evidences, and the like: the Court may dispense with the actual performance of that part of the decree until such bill is determined. Thus, if money is directed to be paid, it ought to be paid before the bill of review is filed: though it may afterwards be ordered to be refunded. The rule, however, only requires the aggrieved party to perform so much of the decree as he was bound to perform at the time he files the bill of review, and does not prevent him filing the bill before he has performed the decree as regards those things which, by the decree, he was not bound to perform till a period subsequent to the time when the bill was filed.10 Under very special circumstances, the performance of the decree may be dispensed with; " and where the plaintiff must be performed, be fore bill of filed. 1 Tynte v. Hodge, 2 H. & M. 287. 2 Ord XXXI. 12. For the mode of making the deposit, see ante, p. 1482. 3 See ante, pp. 1480, 1481. This deposit is 201. Ord. XXXI. 4. 4 Ord. XXXI. 13. For the mode of making the deposit, see ante, p. 1482. 5 Loubier v. Cross, 1 Dick. 223. 6 Williams v. Mellish, 1 Vern. 117. 8 Ord. XXXI. 14; Williams v. Mellish, ubi sup.; Massie v. Graham, 3 McLean, 41; Griggs v. Gear, 3 Gilman, 2. It would be competent for the Court, if the decree sought to be reversed has been partially executed, to make such decree as to restore the parties to their just rights. Shaw C. J. in Elliott v. Balcom, 11 Gray, 296 9 Ld. Red. 88; 2 Bro. P. C. ed. Toml. 65, n; Lubé Eq. Pl. 130. 10 Partridge v. Usborne, 5 Russ. 195, 251. 11 Williams v. Mellish, and Partridge v. Usborne, ubi sup. ; Taylor v. Taylor, 12 Beav. 220, 224, 228; and see Wyatt's P. R. was very poor, he was allowed to file a bill of review, without pay- CH. XXXIV. ment of the costs of the former suit.1 It has been said, that the constant defence to a bill of review for error apparent upon the decree, is by plea of the decree, and demurrer against opening the enrolment. A demurrer would, however, seem to be the proper defence: for, if the decree is fairly stated in the bill, there can be no necessity to plead it." 5 § 5. Defences to bill of review: Demurrer, for error ap parent. time. If any matter beyond the decree is offered as a defence to a bill For length of of review, that matter should be pleaded. It has been stated, that length of time should be pleaded to a bill of review; and that otherwise, the plaintiff would not have the benefit of exceptions: as, infancy, coverture, or the like; but it would seem that, if the plaintiff relies on any such exceptions, he ought to state them in his bill: if he does not do so, this defence can be offered by demurrer." Where a bill of review, or a bill in the nature of a bill of review, Non-relevanis grounded upon new matter, the defendant may, it seems, if he think such new matter not relevant, take the objection by way of demurrer; but as such a bill can only be exhibited by leave of the Court, and the relevancy of the new matter is generally well considered before leave is given, the bill will seldom be liable to a demurrer on this ground." cy of new matter. If a demurrer to a bill of review is allowed, the order allowing Effect of alit, when enrolled, is an effectual bar to another bill of review on the same grounds; and may be pleaded accordingly. lowance of demurrer; or of overrul Where a demurrer to a bill of review, grounded upon error, is overruled, the decree may be reversed without any further hear- ing it. ing." A bill of review, or a bill in the nature of a bill of review, By plea. grounded upon new matter, is liable to any plea which would have 97; Livingston v. Hubbs, 3 John. Ch. 124. This may be done where the party is in execution for non-payment of money under the decree, as this is considered equivalent to performance: Livingston v. Hubbs, supra; so, where the party is insolvent: Stalling v. Goodfoe, 3 Murph. 159; or has given security for the performance of the decree: Stalling v. Good oe, supra; Taylor v. Pearson, 2 Hawkes, 298. 1 Fitton v. Earl of Macclesfield, 1 Vern. 264. 2 Gould v. Tancred, 2 Atk. 534; Dancer . Evett, 1 Vern. 392; Smith v. Turner, ib. 274. 8 Ld. Red. 203, 291; Slingsby v. Hale, 1 Ca. in Cha. 122; Needler v. Kendall, Rep. t. Finch, 468; Jones v. Kenrick, 5 Bro. P. C. ed. Toml. 244, 248; Green v. Jenkins, 1 De G., F. & J. 454; 6 Jur. N. S. 515; see Webb v. Pell, 3 Paige, 368. 4 Hartwell v. Townsend, 2 Bro. P. C. ed. Toml. 107. It would be a good plea to a bill of review, that the decree in the 5 Gregor v. Molesworth, 2 Ves. S. 109. 7 Ld. Red. 205; Ord. XXXI. 11; ante, 8 Denny v. Filmer, 2 Ca. in Cha. 133; 9 Cooke v. Bamfield, 3 Swanst. 607. CH. XXXIV. avoided the effect of that matter if stated in the original bill.1 § 6. 2 It has been stated, that if the defendant can show that the allegation of the discovery of new matter is false, he must do so by plea; and that it is too late to insist upon it by answer; but as the bill must allege the fact of the discovery, and that fact must be the ground of the proceedings, it would seem that it may be traversed by answer and by evidence, like any other fact stated in the bill.' Leave to file SECTION VI.- Bills to impeach decrees for fraud. If a decree has been obtained by fraud, it may be impeached by unnecessary. original bill, without the leave of the Court; the fraud used in obtaining the decree being the principal point in issue, and necessary to be established by proof, before the propriety of the decree can be investigated. Where a decree has been so obtained, the Court will restore the parties to their former situation, whatever their rights may be. In what cases proper. Besides 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 before the Court, and the trust not discovered, or against a person who has made some conveyance or incumbrance 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 incumbrance, or will, in these several cases, ought to be treated as a fraud." It has been also said, that, where an improper decree has been made against an infant, without actual fraud, it ought to be impeached by original bill. When a decree has been made by consent, and 1 Ld. Red. 292. 2 Lewellin v. Macworth, 2 Atk. 40. 3 Ld. Red. 293. The fact that the evi- v. Arnold, 5 Mason, 303; see Hughes v. 4 Evans v. Bacon, 99 Mass. 213; Adams 5 lb. 93; Richmond v. Tayleur, 1 P. Wms. 787; Loyd v. Mansell, 2 id. 73; Wichalse . Short, 3 Bro. P. C. ed. Toml. 558; Kennedy v. Daly, 1 Sch. & Lef. 355, 384; Giffard v. Hort, ib. 386, 407; Mussel v. Morgan, 3 Bro. C. C. 74, 78; Brooke v. Lord Mostyn, 10 Jur. N. S. 1114; 13 W. R. 115, L. JJ.; 2 De G., J. & S. 373, 417. As to bills to impeach decrees, see Adams on Eq. 415; Coop. Eq. Pl. 96; Harr. by Newl. 91; Story Eq. Pl. §426; Welford Eq. Pl. 246; and for form of such a bill, see Willis Eq. Pl. 381. 6 Birne v. Hartpole, 5 Bro. P. C. ed. Toml. 197. 7 Ld. Red. 93; see Style v. Martin, 1 Ca. in Cha. 150; Earl of Carlisle v. Goble, 3 Cha. Rep. 94. 8 Ante, p. 164; Richmond v. Tayleur, ubi sup; Brooke v. Lord Mostyn, ubi sup. |