party to bring him into default, he may file a bill of this nature, although the decree has not been performed.11 The court, under special circumstances, has dispensed with a strict performance of the decree.12 The court exercises great caution in allowing the rule to be dispensed with. The great amount of the sum decreed is not a sufficient reason.1 § 977. Necessity of leave to file. 13 A supplemental bill in the nature of a bill of review cannot be filed without special leave of court first obtained.14 The same leave and the same grounds of application are requisite in the case of a supplemental bill of review as in the case of a bill of review.15 Such application should be made by petition, and founded upon affidavit of the discovery of new matter, and should state that the decree has not yet been enrolled, and notice of its presentation should be given to the other party.16 A petition for 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.17 § 978. Form of supplemental bill in the nature of bill of review. [Title of court and cause, and address to the court.] Complaining, shows unto your honor A. B., of, etc.: That on the 10th day of March, 1843, G. H., of, etc. [the defendant hereinafter named], exhibited his bill of complaint in this honorable court against your orator, and thereby set forth that [insert the original bill]. And your orator, being served with a subpoena for that purpose, appeared and put in his answer to the said bill, to the effect following: [Recite the 11 1 Barbour, Ch. Pr. 362; Partridge v. Usborne, 5 Russ. 195; Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 488. 12 1 Barbour, Ch. Pr. 363; 1 Hoffman, Ch. Pr. 571; Cock v. Hobb, Toth. 173; Balstone v. Biron, 5 Russ. 237. 13 1 Barbour, Ch. Pr. 363; Partridge v. Usborne, 5 Russ. 250. 141 Barbour, Ch. Pr. 365; Pendleton v. Fay, 3 Paige (N. Y.) 204; O'Hara v. Shepherd, 3 Md. Ch. 306; Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 488. 15 Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 488. 16 Mitford, Eq. Pl. 91; 1 Barbour, Ch. Pr. 865; Pendleton v. Fay, 3 Paige (N. Y.) 204. 17 Ridgeway v. Toram, 2 Md. Ch. 303. substance of the answer.] And the said G. H. replied to the said answer, and issue having been joined, and witnesses examined, and the proofs closed, the said cause was brought on to be heard before your honor on the 10th day of October, 1843, when a decree was pronounced, whereby your honor decreed that [state the effect of the decree] as by the said proceedings and decree now remaining of record in this honorable court, reference being thereunto had, will more fully appear. And your orator further shows unto your honor, by leave of this honorable court first had and obtained for that purpose, by way of supplement, that, since the settling and entering of the said decree, your orator has discovered for the first time, as the fact is, that the said E. F. was in his lifetime seised in his demesne as of fee of and in the hereditaments and premises in question in the said cause, and that the said E. F., when so seised, and when of sound mind, duly made and published his last will and testament in writing, bearing date on or about the 1st day of January, A. D. 1842, which was executed by him and attested in such manner as by law is required for passing real estate by devise, and thereby gave and devised unto the said J. R., his heirs and assigns forever, to and for his and their own absolute use and benefit, the said hereditaments and premises in question in the said cause [which your orator claims to be entitled to, as purchaser thereof from the said J. R.]. And your orator further shows that the said decree has never hitherto been enrolled, and, in consequence of the discovery of such new matter as aforesaid, your orator is entitled, as he is advised, to have the said cause heard thereon by your honor at the same time that it is reheard on the said original bill, in the same manner as if such new matter had been put in issue in the said original suit. To the end, therefore, that the said G. H., who is made a party defendant hereto, and his confederates, may full, true, direct, and perfect answer make, upon their respective corporal oaths, according to the best of their knowledge, information, and belief, to all and singular the matters and charges aforesaid [or, if an answer under oath is waived, omit the words "upon their respective corporal oaths," and insert, "but not under oath, answer under oath being hereby waived"], and that as fully and particularly in every respect as if the same were here again repeated, and they thereunto particularly interrogated [interrogate particularly as to supplemental matter]; and that the said will may be established and declared a valid and effectual devise of the said hereditaments and premises, and that the said cause may be heard on such new and supplemental matter as aforesaid at the same time that it is reheard upon the said original bill; and that your orator may have such further and other relief as, under the circumstances herein before particularly mentioned, to your honor shall seem meet, and the nature of this case, as it hereby appears, may require: May it please your honor to grant unto your orator a writ of sub (1041) poena issuing out of and under the seal of this honorable court, to be directed to the said G. H., commanding him, by a certain day and under a certain penalty, to be and appear before your honor then and there to answer the premises, and, further, to stand to and abide such order and decree therein as shall be agreeable to equity and good conscience. And your orator will ever pray. L. M., Solicitor for Complainant. [Add verification.]18 § 979. Proceedings upon such bill. A. B., Complainant. If the court allows a supplemental bill in the nature of a bill of review to be filed, it will be necessary to have a rehearing of the cause in order that the decree may be varied. For this purpose, the party should present a petition for a rehearing at the same time that he applies for leave to file the bill. And the order should provide that the party have leave to file the bill, that the cause be reheard, and that the supplemental bill come on for hearing at the same time with the rehearing.19 18 This form is taken from 2 Barbour, Ch. Pr. 458. See Willis, Pleadings in Eq. 376. 19 1 Barbour, Ch. Pr. 365; Story, Eq. Pl. § 422. (1042) |