land, that the possession be yielded; if it be for money, that the money be paid; if it be for evidences, that the evidences be brought in; and so in other cases which stand upon the strength of the decree alone. But if any act be decreed to be done, which extinguisheth the party's right at the common law, as making of assurance or release, acknowledging satisfaction, canceling bonds or evidences, and the like, those parts of the decree are to be spared until the bill of review be determined; but such sparing is to be warranted by public order made in court." If, however, the plaintiff to the bill of review be insolvent, or for any other reason it be impossible for him to obey the original decree;3 or if he were directed to perform an act after the performance of another act by the other party, and that other have omitted to perform his part thereof; or if the direction were to another defendant to the original decree and not to the party who files the bill of review; or perhaps, if he have given security for its performance, - his disobedience is no objection to the bill of review. By an English order in Chancery, made on March 12, 1700, it was ordered that for the future no bill of review should be allowed or admitted unless the party who preferred it first deposited the sum of £50 with the registrar of the court, as a pledge to answer such costs and damages as the court should award to the adverse party, in case it should think fit to dismiss the bill of review. This order should probably be followed here, five dollars being reckoned as the equivalent of a pound sterling, and the money being deposited with the clerk of the court. The court may, however, dispense with this requirement. A decree entered by consent cannot be impeached by a bill of review.10 A decree entered by consent can be set aside only § 356. Daniell's Ch. Pr. (3d Am. ed.) 1634, 1635. See also Beames' Orders, 4; Massie v. Graham, 3 McLean, 41; Hoffman v. Knox, 50 Fed. R. 484. This rule applies even when it appears on the face of the former decree that the court had not jurisdiction of the subject-matter. Miller v. Clark, 47 Fed. R. 850. 2 Davis v. Speiden, 104 U. S. 83. Story's Eq. Pl., § 406; Wiser v. Blachly, 2J. Ch. (N. Y.) 488; Davis v. Speiden, 104 U. S. 83. 6 5 Partridge v. v. Osborne, 5 Russ. 195, 251; Story's Eq. Pl., § 406. 5 Hobbs v. State Tr. Co. (C. C. A.), 68 Fed. R. 618. 6 Stallings v. Goodloe, 3 Murph. 159; Taylor v. Person, 2 Hawks (N. C.), 298. 7 Beames' Orders, 313; Anon., 2 P. Wms. 283. 8 Davis v. Speiden, 104 U. S. 83. 9 Ibid. 10 Thompson v. Maxwell, 95 U. S. 391. "12 by an original bill alleging fraud or surprise." It is no objection to a bill of review that the party filing it has entered and procured the enrolment of the decree; "because," said Lord Nottingham, "he can have no error till it be enrolled, and perhaps the defendant will never enroll it; " 12 and a party may file a bill of review to a decree entirely in his favor, claiming that it is less beneficial to him than it should have been.13 If upon a bill of review a former decree has been reversed, another bill of review may be brought to reverse the decree of reversal; but after a bill of review has been dismissed upon demurrer or otherwise, no second bill of review will be allowed to be filed.15 It has been held that a bill of review cannot be filed pending an appeal, although the plaintiff alleges that he does not intend to perfect his appeal.16 No person can file a bill of review except a party who has been aggrieved by the decree complained of," or the assignee by operation of law of such a party.18 "If a bondholder not a party to the suit can, under any circumstances, bring a bill of review, he can only have such relief as the trustee would be entitled to in the same form of proceeding. To avoid what the trustee has done in his behalf, he must proceed in some other way by a bill of review.” 19 All the parties to the original decree should be joined either as plaintiffs or as defendants to the bill of review.20 It is doubtful whether a purchaser from the successful party to the decree can be made a defendant to a bill of review. Lord Redesdale gives the following rules for the framing of a bill of review: "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 ag grieved by it; and the ground of law, or new matter discov 11 Gilbert v. Endean, 9 Ch. D. 259, 266. See infra, § 355. 12 Cook v. Bamfield, 3 Swanst. 607. 13 Cook v. Bamfield, 3 Swanst. 607; Dexter v. Arnold, 5 Mason, 303. 14 Mitford's Pl., ch. 1, § 3; Stafford v. Bryan, 2 Paige (N. Y.), 45. 15 Pitt v. Earl of Arglass, 1 Vern. 441; Dunn v. Filmore, 1 Vern. 135. 16 Kimberly v. Arms, 40 Fed. R. 545, 550; s. c., 136 U. S. 629; Willian v. Willian, 16 Ves. 72, 87. 17 Whiting v. Bank of U. S., 13 Pet. 6; Thompson v. Maxwell, 95 U. S. 391. But see King v. Dundee M. & Tr. L. Co., 28 Fed. R. 33. 18 Story's Eq. Pl., § 409; Thompson v. Maxwell, 95 U. S. 391. 19 Waite, C. J., in Shaw v. Railroad Co., 100 U. S. 605, 611. 20 Bank of U. S. v. White, 8 Pet. 262. 21 Rector v. Fitzgerald, 59 Fed. R. 808. ered upon which he seeks to impeach it; and if the decree is impeached on the latter ground, it seems necessary to state in the bill the leave obtained to file it and the fact of the discovery, though it may be doubted whether after leave given to file the bill that fact is traversable." 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 farther 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. The bill may also, if the original suit has become abated, be at the same time a bill of revivor. A supplemental bill may likewise be added, if any event has happened which requires it; and particularly if any person not a party in the original suit becomes interested in the subject he must be made a party to the bill of review by way of supplement." 23 The plaintiff, however, cannot put his case in the alternative, as a bill of review, or, if the court shall think it not good as such, then as a bill of revivor and supplement.24 It is improper for a bill of review on account of errors of law to contain a statement of the evidence in the original cause.25 A bill of review which seeks relief because the original decree was erroneous for errors of law appearing on its face, and because of the discovery of new facts, and because of fraud, has been held multifarious.26 A bill of review should be signed by counsel, and otherwise conform in general to the requirements of an original bill. If the court had jurisdiction of the original. suit, it can take jurisdiction of the bill of review, even though it would have none were the latter regarded as the beginning of a new suit.28 It has been said that a Federal court cannot 22 But see U. S. v. Sampeyreac, Hempst. 118; Dexter v. Arnold, 5 Mason, 303; Story's Eq. Pl.. 420, note 7. 23 Mitford's Pl., ch. 1, § 3, pt. 3. See also Whiting v. Bank of U. S., 13 Pet. 6. 24 Perry v. Phelips, 17 Ves. 173. 25 Buffington v. Harvey, 95 U. S. 99. 26 Kimberly v. Arms, 40 Fed. R. 548, 559; s. c., 136 U. S. 629. 27 Mitford's Pl., ch. 1, § 2, pt. 3. 28 Oglesby v. Attrill, 12 Fed. R. 227. See § 21. take cognizance of a bill of review to a decree of a State court." The service and the appearance of a defendant to a bill of review is made and enforced in the same manner as to an original bill. But if the defendant be beyond the jurisdiction of the court, service of a subpoena upon his solicitor in the former suit may be allowed by the court.30 The usual defense to a bill of review for errors apparent upon the face of the decree is by demurrer; to which is usually joined a plea setting forth in full the original decree, although there seems to be no necessity for this practice." If the demurrer is overruled, the decree is reversed or modified and the errors allowed, and no further answer or hearing is necessary. If the demurrer is sustained, that has all the effect of confirming the decree, and puts an end to the suit. The rule is in such a case only to vary the decree upon such errors as are complained of, except as to consequential directions, which will be altered to conform to the changes made. If a bill of review for apparent error contain a statement of the evidence taken in the original cause, that may be stricken out of the bill as surplusage on motion; 36 or it may be a ground of demurrer, if specially assigned;" but the bill, if otherwise good, cannot be dismissed for that reason upon a general demurrer, although such evidence or an allegation of an error of fact cannot on a general demurrer be used in support of the bill.39 According to Lord Redesdale: "When any matter beyond the decree is to be offered against opening the enrolment, as length of time, that matter must be pleaded; otherwise the plaintiff will not have the benefit of exceptions, as infancy, coverture, or the like." 40 "A bill of review upon the discovery of new matter and a supplemental bill of the same nature being exhibited only by leave of the court, the ground of the bill is generally well considered before it is brought; and therefore in point of substance it can rarely be 38 29 Bradley, J., in Barrow v. Hunton, 99 U. S. 80, 83. 30 See supra, § 96. 31 Mitford's Pl., ch. 2, § 2, pt. 1, 5. 32 Ibid. 33 Cook v. Bamfield, 3 Swanst. 607. 34 Webb v. Pell, 3 Paige (N. Y.), 368. 35 Moore v. Moore, 2 Ves. Sen. 596, 598. 36 Bradley, J., in Buffington v. Harvey, 95 U. S. 99. 37 Buffington v. Harvey, 95 U.S. 99. 38 Ibid. 39 Shelton v. Van Kleeck, 106 U. S. 532. 40 Mitford's PL, ch. 2, § 2, pt. 2. 45 44 liable to a demurrer. But if brought upon new matter, and the defendant should think that matter not relevant, probably he might take advantage of it by way of demurrer, although the relevancy ought be considered at the time leave is given to bring the bill." If a demurrer to such a bill of review or supplemental bill be overruled, it does not dispose of the cause; and the defendant must answer, because fact is at issue.42 If the demurrer is allowed, however, the suit is at an end." The defendant may, it seems, traverse, and attempt to disprove, the allegations concerning the discovery of the new facts. Upon the argument of the demurrer, nothing can be read except the bill of review and the decree, and, in the Federal courts, the record 46 in the original suit; but, after the demurrer has been overruled, the plaintiff is at liberty to read any evidence that was submitted therein, as at a rehearing, the cause being then equally open." Filing a bill of review does not prevent the execution of the decree impeached.48 The court has power, when sustaining such a bill, to set aside a conveyance made in pursuance of the decree." Where an appeal from the original decree has been taken and dismissed with costs, the cause will not be erased from the docket by a decree sustaining a bill of review for want of jurisdiction; and in such a case the court will not usually order a restitution of the costs of the original cause in the Circuit and appellate courts paid by the plaintiff to the bill of review,50 § 357. Bills in the nature of bills of review. As has been said above,1 only parties to the decree impeached or their privies by operation of law, as heirs, executors, or administrators, are entitled to file a bill of review; but other persons in interest and in privity of estate, who are aggrieved by the decree, can have the same relief by means of a bill in the nature of a bill of review. Such are assignees, devisees, and remaindermen of the 41 Mitford's Pl., ch. 2, § 2, pt. 2. 42 Cook v. Bamfield, 3 Swanst. 607. 43 Mitford's Pl., ch. 2, § 2, pt. 2. 44 Dexter v. Arnold, 5 Mason, 303; U. S. v. Sampeyreac, Hempst. 118; Story's Eq. Pl., § 420, n. 7. 45 Catterall v. Purchase, 1 Atk. 290. 46 Whiting v. Bank of U. S., 13 Pet. 13; Story's Eq. Pl., § 407. 47 Catterall v. Purchase, 1 Atk. 290. 48 Williams v. Mellish, 1 Vern. 117, n. 49 Bank of U. S. v. Ritchie, 8 Pet. 128. 50 Miller v. Clark, 52 Fed. R. 900. See Washington Bridge Co. v. Stewart, 3 How. 413. § 357. 1 See § 356, supra. |