original unsuccessful parties. Lord Redesdale also speaks as follows concerning such a bill: "If a decree is made against a person who has no interest at all in the matter in dispute, or had not such an interest as was sufficient to render the decree against him binding upon some person claiming the same or a similar interest, relief may be obtained against error in the decree by a bill in the nature of a bill of review. Thus, if a decree is made against a tenant for life only, a remainderman 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 own interest, and thereupon praying that the proceedings in the original cause may be reviewed, and for that purpose that the other party may appear to and answer this new bill, and that the rights of the parties may be properly ascertained. 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." Otherwise, the frame of and proceedings under bills in the nature of bills of review are substantially the same as those relating to bills of review.

§ 358. Bills to impeach decrees on account of fraud. "If a decree has been obtained by fraud, it may be impeached by 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. And where a decree has been so obtained the court will restore the parties to their former situation, whatever their rights may be." Such a bill has been called an original bill in the nature of a bill of review. There are dicta stating that a decree obtained by fraud may be set aside upon petition; but it was finally settled that after enrolment a decree could only be impeached for this account by an

3 Story's Eq. PL., § 409; Whiting v. Bank of U. S., 13 Pet. 6; Singleton v. Singleton, 8 B. Monr. (Ky.) 340; Turner v. Berry, 38 Ill. 541.

4 Mitford's Pl., ch. 1, § 2, pt. 3. §358. 1 Mitford's Pl., ch. 1, § 2, pt. 3. See also Story's Eq. Pl., § 426; Richmond v. Tayleur, 1 P. Wms. 734; Bar

nesle v. Powell, 1 Ves. Sen. 120; Evans v. Bacon, 90 Mass. 213; Pacific R. of Mo. v. Mo. Pac. Ry. Co., 111 U. S. 505.

2 Mussel v. Morgan, 3 Bro. Ch. R. 74, 79; Story's Eq. Pl., § 426.

3 Sheldon v. Fortescue Aland, 3 P. Wms. 104, 111; Story's Eq. Pl., § 426.

original bill. This is the only manner in which a decree entered by consent can be impeached. Decrees entered by collusion, or surprise,' may also be rectified in this manner. Certain other cases, although if logical arrangement solely were considered they should be considered under other heads, yet as they are usually spoken of in this connection by the books, may be here referred to. Lord Redesdale uses the following language, which has been copied by all subsequent textwriters: "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 when a decree has been made in favor of or against an heir, when the ancestor has in fact disposed by will of the subjectmatter 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."8

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 bill will be demurrable if it fails to allege that the complainant thereto was misled to his prejudice by a fraudulent representation or suppression of which he complains.10 All the parties to the original suit or their representatives should be joined as parties to it." Such

4 Mussel v. Morgan, 3 Bro. Ch. R. 74, 79; Bennett v. Hamill, 2 Sch. & Lefr. 566, 576; Story's Eq. Pl., § 426. 5 Buck v. Fawcett, 3 P. Wms. 242; Davenport v. Stafford, 8 Beav. 503; Gilbert v. Endean, L. R. 9 Ch. D. 259; Seton on Decrees (4th ed.), 1536.

"Buck v. Fawcett, 3 P. Wms. 242; Story's Eq. Pl., §§ 426, 428.

lage of Cellina v. Eastport Sav. Bank Co. (C. C. A.), 68 Fed. R. 401. It has been said that when a motion for a new trial and a petition for a rehearing have been denied, equity will not entertain a bill to set aside a judgment on the same ground as that alleged in such motion and petition. Hendrickson v. Bradley (C. C. A.),

7 Stevens v. Guppy, 1 Turn. & Rus. 85 Fed. R. 508. 178.

8 Mitford's Pl., ch. 1, § 2, pt. 3. Upon a bill to set aside a judgment for mistake, stronger proof of freedom from negligence is required than upon a motion for a new trial. Vil

9Mitford's Pl., ch. 2,§ 1, pt. 3; Story's Eq. Pl., § 476.

10 Massachusetts Ben. L. Ass'n v. Lohmiller (C. C. A.), 74 Fed. R. 23. 11 Harwood v. Railroad Co.,17 Wall

78.

14

a bill may be filed in the court of first instance to enjoin the enforcement of a judgment after a mandate of affirmance has been remitted to it by a court of review,12 and to enjoin an officer of the appellate court from enforcing a decree of reversal and sale when such decree was procured from the court of review by fraud.13 A bill to set aside a judgment or decree of a State court on account of fraud may be filed in a Federal court, and if originally filed in a State court, may be removed to a Federal court, when the requisite difference of citizenship exists.15 A bill to set aside the decree of a Federal court on account of fraud may be filed in a Federal court irrespective of the citizenship of the parties.16 Although such a bill is ancillary to the former suit in the same court, upon demurrer thereto judicial notice will not be taken of any matters in the former suit not set forth in the new bill, unless, perhaps, when it is filed by a party to the former suit." A judgment of a Federal court entered after personal service upon the defendant cannot be set aside by an original bill after the time to file a bill of review has expired, because the record does not show the jurisdictional difference of citizenship.18 A bill defective as a bill to set aside a decree for fraud might perhaps be sustained as a bill of review for matters apparent upon the record, but not unless filed within the time allowed for an appeal.19 Upon an application for leave to file a bill of review for matters of fact newly discovered which were insufficient to support the bill, the court refused to separate from such allegations other allegations of fraud in obtaining the original decree, and to permit the bill to be filed as a bill to set aside the decree for fraud.20 A bill to set aside a decree for fraud must show a valid and meritorious defense to the original decree.21

12 Nelson v. First Nat. Bank, 70 Fed. R. 526.

13 Carver v. Jarvis-Conklin M. Tr. Co., 73 Fed. R. 9.

14 Gaines v. Fuentes, 92 U. S. 10; Barrow v. Hunton, 99 U. S. 80; Johnson v. Waters, 111 U. S. 640; Arrowsmith v. Gleason, 129 U. S. 86, 101. But see Nougue v. Clapp, 101 U. S. 551; Graham v. Boston, H. & E. R. Co., 118 U. S. 161, 177.

16 Pacific R. of Mo. v. Mo. Pac. Ry. Co., 111 U. S. 585; supra, § 21.

17 Richardson v. Loree, 94 Fed. R. 375. But see supra, § 264.

18 Donham v. Springfield H. Co., 62 Fed. R. 110.

19 Dunlevy v. Dunlevy, 38 Fed. R. 462. See supra, § 354.

20 Kimberly v. Arms, 40 Fed. R. 548, 558; s. c., 136 U. S. 629.

21 Kimberly v. Arms, 40 Fed. R. 548;

15 Marshall v. Holmes, 141 U. S. 589. S. C., 136 U. S. 629. See supra, § 21.

§ 359. Bills to suspend or avoid the operation of decrees or judgments. Lord Redesdale speaks as follows concerning bills to suspend the operation of decrees: "The operation of a decree signed and enrolled 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 mortgagor at the time of payment being forced to leave the kingdom to avoid the consequences of his engagements with the royal party, and having requested 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." "The embarrassments occasioned by the civil war in the reign of Charles I., and the state of affairs after his death, before the restoration of Charles II., occasioned many extraordinary applications to the court of Chancery for relief, and perhaps induced the court to go far in extending relief; but there were many cases of extreme hardship, in which it was deemed impossible, consistently with established principles, to give relief; and all cases determined soon after the restoration, upon circumstances connected with the prior disturbed state of the country, ought to be considered with much caution."2 No instance is known of the maintenance of such a bill in a Federal court. In a few cases the Federal courts have sustained bills to suspend the operation and enjoin the enforcement of judgments at law for matters subsequent.3

§ 359. Mitford's Pl., ch. 1, § 2, pt. 3; Cocker v. Bevis, 1 Ch. Cas. 61; and also referring to Venables v. Foyle, 1 Ch. Cas. 2; Whorewood v. Whorewood, 1 Ch. Cas. 250; Wakelin v. Walthal, 2 Ch. Cas. 8.

2 Mitford's Pl., ch. 1, § 2, pt. 3.

3 Johnson v. St. Louis, I. M. & S. Ry. Co., 141 U. S. 602, 610; Parker v. The Judges, 12 Wheat. 561. See Ballance v. Forsyth, 24 How. 183.

END OF VOL. I.