being in issue in the cause, the application could not be granted. In answer to this objection, a case of Barnes v. Offer,1 decided by the Master of the Rolls, 20th December, 1825, was cited, showing that a point not in issue formed the ground for granting liberty to file a supplemental bill, in the nature of a bill of review. The Lord Chancellor said: "As to the question whether the matter brought forward by this petition, not having been put in issue in the original cause, it is now competent for the petitioner to ask for the benefit of it, by means of a supplemental bill in the nature of a bill of review, I am satisfied, by the discussion which has taken place, that, in a suit of this description, a party may apply for such relief as this petition prays." 2 The order made by his Lordship was, that the petitioner, upon depositing 50l. with the registrar, should be at liberty to file a supplemental bill in the nature of a bill of review, upon the new matter stated in his petition touching the warranty and otherwise, and for relief, as he should be advised; and that he should be at liberty to apply to have the original cause set down to be reheard, and to come on at the same time.

If the matter had come to the knowledge of the plaintiff's attorney, before the time had expired within which such evidence could have been used in the original cause, it is notice to the party himself, and will not form a ground for a review.4

In a case where a party, after decree, came to the knowledge of two letters, which seemed to overthrow the decree and all the pro1 Partridge v. Usborne, 5 Russ. 225, n.

Story Eq. Pl. § 415, 416, and notes; Mitf. Eq. Pl. by Jeremy, 85-87; Dexter v. Arnold, 5 Mason, 313. It seems now to be established, that matter discovered after a decree has been made, though not capable of being used as evidence of anything which was previously in issue in the cause, but constituting an entirely new issue, may be the subject of a bill of review, or of a supplemental bill in the nature of a bill of review. Welf. Eq. Pl. 238; Story Eq. Pl. § 416. In Love v. Blewit, 1 Dev. & Bat. Eq. 108, 110, it was held, that if the newlydiscovered evidence is in writing or of record, a review will be granted, notwithstanding the fact to which such evidence relates may have been in issue before; but otherwise, if the newly-discovered evidence is merely parol proof. Head v. Head, 3 A. K. Marsh. 121. See Story Eq. Pl. § 415, and note, § 416; Randolph v. Randolph, 1 Hen. & Munf. 180; Jenkins v. Eldredge, 3 Story C. C. 299, 312; Respass v. McClanahan, Hardin, 346; Vaughn v. Hann, 6 B. Monroe, 338; United States v. Samperyac, 1 Hemp. 118; Bush v. Madeira, 14 B. Monr. (Ky.) 212.

Norris v. Le Neve, 3 Atk. 35.

* See Jenkins v. Eldredge, 3 Story C. C. 299.

ceedings dependent thereon, the Court below would not put the party to answer to those two letters, but allowed a demurrer to a bill of review. The reason given in that case was, that the party might have found out the two letters before the hearing, since he had them in his own custody; and that if this practice should take place, it might overthrow all the decrees in the Court; and that, if this should be allowed as a precedent, a man might take up his defence when he pleased; whereas his whole defence ought to be made at once, and before the hearing. Gilbert adds: "It is said the Lords reversed the allowance of the demurrer, and ordered the party to answer to the bill of review: but this precedent may be found out whenever there is occasion for it." He continues; "Certainly the reversal in the House of Lords was right; for the letters relating to the partnership were found after the decree, which the party had no knowledge of, though they happened to be in his custody; they ought to be taken under consideration, even after a decree signed and enrolled but then the party in whose custody the papers were, must give an account of their manner of coming to light; and in this case these letters were sent in trunks from Hamburgh, where he had no reason to suspect there were any papers relating to the cause; so the finding of them was as much casual after the decree, as if they had not been in the party's custody, and any matter casually coming to light after a decree that would make an alteration in the decree, ought to be taken into consideration upon a bill of review; and, therefore, they reversed that part of the decree which established the demurrer to the bill of review, without compelling the defendant to such bill of review to answer to the letters." 1

In Gould v. Tancred, the petition for leave to review was 1st. because the Master in his report had not made annual rests; 2dly, had omitted three years in the account; and 3dly, that there was matter come to the plaintiff's knowledge subsequent to the Master's making his report, though it existed at that time. Lord Hardwicke thought the application unfortunate, the report having been confirmed six years, and refused the petition, as it would appear, on the two first points, because the petitioner's solicitor attended on the accounts before the Master, which bound the party. On the third point the application was refused, as not supported by the evidence.

1 For. Rom. 187.

22 Atk. 553.

If the plaintiff, by his petition and the evidence in support, makes out a sufficiently prima facie case, an order will be made upon the petitioner's depositing 50l. with the registrar, that he may be at liberty to file a bill of review, as he shall be advised. The bill is settled and signed by counsel, and filed with the plaintiff's clerk in Court. The defendant is served with a subpoena, appears, and may plead, answer, or demur, as in an original bill.1

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 liable to a demurrer. But if brought upon new matter, and the defendant should think the matter not relevant, probably he might take advantage of it by way of demurrer, although the relevancy ought to be considered at the time leave is given to bring the bill.2

If a demurrer be put in to a bill of review, on the ground of new facts, or facts newly discovered, and the demurrer is overruled, it does not dispose of the cause, and the defendant must answer, because fact is at issue. On arguing a demurrer to a bill of review, nothing can be read but what appears on the face of the decree; but after the demurrer is overruled, the plaintiffs are at liberty to read bill or answer, or any other evidence, as at a rehearing, the cause being now equally open. If the demurrer is allowed

1 A trial by jury upon a bill of review is within the discretion of the Judge who hears the cause. Elliott v. Balcom, 11 Gray, 286.

The finding of facts by the Court on a petition for leave to file a bill of review in Equity is not conclusive at the hearing on the bill. Elliott v. Balcom, 11 Gray, 286.

2

Mitf. Pl. 167; 1 Story, Eq. Pl. § 636; Mitf. Eq. Pl. by Jeremy, 205; Cooper, Eq. Pl. 216.

Cooke v. Bampfield, 3 Swanst. 607, Lord Nottingham's MSS. Upon a bill of review for newly-discovered evidence, the other party may controvert the fact that it is newly discovered, by plea or answer. Dexter v. Arnold, 5 Mason, 303. See Hughes v. Milliken, 1 Bland, 506.

Catterall v. Purchase, 1 Atk. 290; Lubé, Eq. Pl. 248. If the bill has assigned errors of law, and the plea and demurrer be allowed, an order to that effect is made, and that the bill be dismissed. Webb v. Pell, 3 Paige, 368. If a bill of review be brought on new matter, fitting to be answered, the defendant may put in an answer controverting the fact that the matter is newly discovered. Lubé, Eq. Pl. 132; Dexter v. Arnold, 5 Mason, 303. The case will proceed upon such bill as an original bill. 2 Hoff. Ch. Pr. 12.

there is an end of the suit, as no new bill of review can be filed after a demurrer has been allowed to a former bill of review. If the demurrer is allowed, it may be enrolled, but it is said to be otherwise if the demurrer is disallowed.1

If the decree has not been signed and enrolled, and the error is apparent on the face of the decree, the remedy is by a rehearing. There is no instance of a bill in the nature of a bill of review, upon error apparent.2 If the decree has been enrolled, as before stated, it is a bill of review.

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.3

If new facts have been discovered since publication passed in the original cause, then a supplemental bill is necessary to introduce those facts. Before this supplemental bill can be filed, the leave of the Court must be obtained in the manner before explained. When the decree has not been signed and enrolled, a bill of review cannot be brought.5

If the decree has not been signed and enrolled, and the supposed error appears from new matter which has arisen since the decree, or upon new proof materially pressing upon the decree, and discovered after the decree, or at least after publication had passed in the cause, the remedy is by a supplemental bill in the nature of a bill of review. In this case, leave must be obtained for liberty to file a supplemental bill in the nature of a bill of review, by an attendable petition, supported by affidavit, similar to 1 Woots v. Tucker, 2 Vern. 119, sed query? Perry v. Phelips, 17 Ves. 178.

Ibid.; Story Eq. Pl. § 421, and note; Pendleton v. Fay, 3 Paige, 204; Wiser v. Blachly, 2 John. Ch. 488; Mitf. Eq. Pl. by Jeremy, 90.

Perry v. Phelips, 17 Ves. 178.

Llewellen v. Mackworth, 2 Atk. 40; Standish v. Radley, 2 Atk. 178.

Young v. Keighly, 16 Ves. 350; Wortley v. Birkhead, 3 Atk. 809; Story Eq. Pl. § 422; Pendleton v. Fay, 3 Paige, 204; Mitf. Eq. Pl. by Jeremy, 91: Singleton v. Singleton, 8 B. Monroe, 340; Dausman v. Hooe, 3 Wis. 466. 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 . Toram. ? Md. Ch. Dec. 303. The application addresses itself to the sound discretion of the Court, and does not rest upon a foundation of strict right. Hughes v. Jones, 2 Md Ch. Dec. 289; Winchester v. Winchester, 1 Head (Tenn.) 460.

that used for liberty to file a bill to review a decree signed and enrolled, on new facts or new evidence discovered.1

There is this difference between a bill of review and a supplemental bill in the nature of a bill of review. In the former, if introducing also matter of supplement or revivor, the prayer, as far as it is a bill of review, is that the decree may be reviewed and reversed; in the other, adopting also the proper prayer for revivor, as to the supplemental matter, the prayer is that the cause may be reheard.2

If the Court is of opinion that the new matter is material and relevant, and of such a nature as to make it a fit subject of judg ment in a cause, and the evidence satisfactorily makes out that the new matter did not come to the knowledge of the plaintiff or his agents within such time as the same could have been advantageously used in the original cause, liberty will be given to the petitioner to file a supplemental bill in the nature of a bill of review.

The order is, that upon the petitioner's depositing 50l. with the registrar, he may be at liberty to file a supplemental bill, in the nature of a bill of review, as he shall be advised. The deposit of 501. is required, by Order of 17th October, 1741.3 Before this order, although a bill of review could not be brought upon a decree signed and enrolled, for new and supplemental matter in being at the time of making the decree, but discovered and come to knowledge afterwards, without the leave of the Court, and making a deposit of 501.; yet if the decree had not been signed and enrolled, a practice appears to have existed of filing a supplemental bill in the nature of a bill of review at large, without making any

Story Eq. Pl. § 422; Pendleton v. Fay, 3 Paige, 204; Mitford Eq. Pl. by Jeremy, 91; Hughes v. Jones, 2 Md. Ch. Dec. 289; Simpson v. Watts, 6 Rich. Eq. (S. C.) 364. 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; Story Eq. Pl. § 423; Gullett v. Housh, 7 Blackf. 52; Ridgeway v. Toram, 2 Md. Ch. Dec. 305; Hughes v. Jones, ubi supra.

See Story Eq. Pl. § 425.

Beam. Ord. 368.