be allowed where some plain omission or mistake has been made, or where something material to the decree is brought to the notice of the court which had previously escaped its attention,13 and not where the court sees no reason to apprehend that a mistake in law or in fact has been made in the decision.14 The grounds upon which courts ordinarily grant rehearings are: (1) Upon allegations that any question decisive of the cause, and duly submitted by counsel, has been overlooked by the court; or (2) that the decision is in conflict with an express statute, or with a controlling decision, either overlooked by the court, or to which attention was not drawn through the neglect or inadvertence of counsel.15 In some jurisdictions it is held that a rehearing will not be granted on account of the discovery of new evidence or new matter.16 In other jurisdictions, a rehearing is allowable on the ground of after-discovery of evidence, but in such cases it is held that the evidence must not be merely cumulative upon the litigated facts already in issue, but must be material, and such as would probably change the result, and that it must appear that, by reasonable diligence of the party asking for a rehearing, it could not have been used on the former hearing.17 And it is held that, where a rehearing is ap

18 Jenkins v. Eldredge, 3 Story, 299, Fed. Cas. No. 7,267. 14 Attorney General v. New York & L. B. R. Co., 24 N. J. Eq. 59. 15 Railway Register Mfg. Co. v. North Hudson Co. Railroad Co., 20 Fed. 411; Marine Nat. Bank v. National City Bank, 59 N. Y. 73.

16 1 Barbour, Ch. Pr. 354; Mead v. Arms, 3 Vt. 148, 21 Am. Dec. 581. If new evidence has been discovered after the original hearing, the proper course is to obtain leave to file a supplemental bill in the nature of a bill of review, to come on for hearing at the same time with the rehearing of the original decree. 1 Barbour, Ch. Pr. 361. The supplemental bill, in the nature of a bill of review to bring forward new matter, cannot be filed without leave of court. This leave should be applied for by petition, which should pray a rehearing of the original cause at the same time that it is heard on the supplemental bill. Finlayson v. Lipscomb, 15 Fla. 558; Mead v. Arms, 3 Vt. 148, 21 Am. Dec. 581; Standish v. Radley, 2 Atk. 177; Hinson v. Pickett, 1 Hill Eq. (S. C.) 35; Reeves v. Keystone Bridge Co., 2 Ban. & A. 256, Fed. Cas. No. 11,661.

17 1 Barbour, Ch. Pr. 354; Baker v. Whiting, 1 Story, 218, Fed. Cas. No. 786; Powell v. Batson, 4 W. Va. 610; Detroit Sav. Bank v. Truesdail, 38 Mich. 430; Adair v. Thayer, 7 Fed. 920; Dunham v. Winans, 2 Paige

plied for on the ground of newly-discovered evidence, the application is mainly governed by the same considerations that apply to cases where leave is asked, after publication of testimony, and before the hearing, to file a supplemental bill in order to bring such new evidence before the court, or where, after a decree, leave is asked to file a bill of review, or a bill in the nature of a bill of review, upon the like ground;18 and will not be granted where, by diligence, the evidence could have been introduced on the original hearing, but was not so introduced because the applicant and his counsel were misled as to the real issue by the arguments of the opposing counsel.19 A rehearing is never granted for the purpose of enabling a party to contradict witnesses examined by the adverse party.20 Error of judgment, or mistake of law, or want of attention or capacity of counsel is no ground for a rehearing.21 A rehearing will not be al

(N. Y.) 24; Hughes v. Jones, 2 Md. Ch. 289; Kelley v. McKinney, 5 Lea (Tenn.) 164; Reeves v. Keystone Bridge Co., 2 Ban. & A. 256, Fed. Cas. No. 11,661; Acme Flexible Clasp Co. v. Cary Mfg. Co., 99 Fed. 500; Owens v. Love, 9 Fla. 334; Hinson v. Pickett, 1 Hill Eq. (S. C.) 35; Pittsburgh Reduction Co. v. Cowles Electric Smelting & Aluminum Co., 64 Fed. 121, citing Beach, Mod. Eq. Pr. § 836; Pfanschmidt v. Mercantile Co., 32 Fed. 667. It is laid down that, if the newly-discovered evidence is of a different kind and character from that adduced on the trial, it will not be liable to the objection that it is cumulative. Mulock v. Mulock, 28 N. J. Eq. 15, citing Guyot v. Butts, 4 Wend. (N. Y.) 579; Gardner v. Mitchell, 6 Pick. (Mass.) 114; Watts v. Howard, 7 Metc. (Mass.) 478, 480.

18 Daniel v. Mitchell, 1 Story, 198, Fed. Cas. No. 3,563; Baker v. Whiting, 1 Story, 218, Fed. Cas. No. 786; Pittsburgh Reduction Co. v. Cowles Electric Smelting & Aluminum Co., 64 Fed. 125.

19 Pittsburgh Reduction Co. v. Cowles Electric Smelting & Aluminum Co., 64 Fed. 125.

20 Dunham v. Winans, 2 Paige (N. Y.) 24.

21 Baker v. Whiting, 1 Story, 218, Fed. Cas. No. 786; McDowell v. Perrine, 36 N. J. Eq. 632; Witters v. Sowles, 31 Fed. 5; Hunter v. Marlboro, 2 Woodb. & M. 168, Fed. Cas. No. 6,908; Robinson v. Sampson, 26 Me. 11; Patterson v. Read, 43 N. J. Eq. 18, 10 Atl. 807; Prevost v. Gratz, 1 Pet. C. C. 364, Fed. Cas. No. 11,406. See, also, Pittsburgh Reduction Co. v. Cowles Electric Smelting & Aluminum Co., 64 Fed. 125, citing Beach, Mod. Eq. Pr. § 835. When, upon the hearing of the cause, the counsel for the defendants abandoned the defense after hear

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lowed on a decree for costs only, unless good ground for the application be shown.22 The court may of its own motion order a rehearing. 23 It is said that a rehearing will not be allowed to relieve a party against an invalid decree, inasmuch as his rights are not prejudiced thereby.24

§ 749. Rehearing of default and consent decrees.

A rehearing of a decree by default may also be had in the same manner as other decrees, and whatever decree is made upon such rehearing will be absolute, even though the party again makes default.25 Where a consent decree is entered, a rehearing is not usually allowed.28 But is is said that a rehearing may be granted for reasons sufficient to authorize the setting aside of the consent or agreement under which the decree was rendered.27

ing the opening argument in behalf of the complainant, the court re fused to grant a rehearing upon the ordinary certificate of counsel. To ob tain a rehearing under such circumstances, it was held that the defendants would be required to show a violation of duty on the part of their counsel, or that he had clearly mistaken the law and the facts. 1 Barbour, Ch. Pr. 355; Decarters v. La Farge, 1 Paige (N. Y.) 574.

22 Travis v. Waters, 1 Johns. Ch. (N. Y.) 48. See 1 Barbour, Ch. Pr. 355; Mulvany v. Dillon, 1 Moll. 19; Taylor v. Popham. 15 Ves. 72; Eastburn v. Kirk, 2 Johns. Ch. (N. Y.) 317.

23 Hughs v. Washington, 65 Ill. 245.

24 Hurlburd v. Freelove, 3 Wis. 537.

251 Barbour, Ch. Pr. 353; Hankwitz v. Ocarrel, 1 Dickens, 109. See Took v. Clark, 1 Dickens, 350.

26 Hodges v. McDuff, 76 Mich. 303, 43 N. W. 428; Armstrong v. Cooper, 11 Ill. 540; Wilcox v. Wilcox, 36 N. C. 36.

27 Ex parte Gresham, 82 Ala. 359, 2 So. 486; Attorney General v. Tomline, 7 Ch. Div. 388; Seton, Decrees, 774. Where a decree is entered by consent, the party, in case of fraud or collusion, must seek relief by an original bill. Monell v. Lawrence, 12 Johns. (N. Y.) 521; Harrison v. Rumsey, 2 Ves. Sr. 488; Bradish v. Gee, Amb. 229. It is said that Lord Thurlow appeared to think that, when anything was inserted in a decretal order, as by consent, to which the party had not consented, it might be rectified by bill of review, but not by motion. 1 Barbour, Ch Pr. 353; Anonymous, 1 Ves. Jr. 93.

§ 750. Who may apply for rehearing.

Any party to the record having an interest in the decree may petition for a rehearing. One made a defendant in respect to an office, which he resigns before any decree is made in the suit, but continuing upon the record, and having an interest in the subject-matter of the suit, acquired by his tenure of office, may apply for a rehearing. But one who, after decree, is brought into court by a supplemental bill, to which he has appeared, but not answered, has no right to petition for a rehearing, and, where he joins in the same petition with others so entitled, the petition may be amended by striking out his name.28 The right to have a decree upon default reheard is not confined to the party against whom the decree has been obtained. If the party obtaining the decree finds that he has not taken such decree as he is entitled to, or has committed an error in the form or substance of it, he may have it reheard upon the usual terms.29 An order for a rehearing may be obtained by the complainant when the cause has been originally set down for hearing at the request of the defendant, and a decree for dismissing the bill made upon default of the complainant's appearance.30

$751. How applied for.

A rehearing is applied for upon petition, which must state

281 Barbour, Ch. Pr. 355; Attorney General v. Stamford, 6 Jur. 117; Heermans v. Montague (Va.) 20 S. E. 899. It is held that one not a party is not entitled to file a petition for rehearing, but the proper practice is to file a petition for leave to file a petition for a rehearing. Doyle v. New York & N. E. R. Co., 14 R. I. 55; Heermans v. Montague (Va.) 20 S. E. 899; Berry v. Attorney General, 2 Macn. & G. 16; Gwynne V. Edwards, 9 Beav. 22; Jopp v. Wood, 33 Beav. 372.

291 Barbour, Ch. Pr. 354, Baxter v. Wilson, 2 Atk. 152. A petition for rehearing does not lie for assignees; but it is nevertheless competent for a person not a party to a former suit, but whose interest may in some way have been affected by the proceedings had therein, to come in by way of petition to be made a party, and then to ask a rehearing of a former decree. 1 Barton, Ch. Pr. 205, cited in Armstead v. Bailey, 83 Va. 242, 2 S. E. 38; Heermans v. Montague (Va.) 20 S. E. 899. 301 Barbour, Ch. Pr. 353; Terran v. Waite, 2 Dickens, 782.

the special matter or cause of the application, and the particular points in which the decree is alleged to be erroneous. be confined to the case upon the record. If it suggests, as the grounds of rehearing, facts not alleged in the pleadings, the application will be refused.31 It must always state by whom it is presented, the interest of the petitioner, the material facts upon which it is founded, and the relief sought.32 A petition for a rehearing on the ground of newly-discovered evidence should fully state, independently of the accompanying affidavits, the nature of the new evidence relied upon, that it was not known to the petitioner until after the decree, and when it first came to his knowledge. Particular and sufficient facts must be disclosed, showing that with reasonable diligence the alleged newly-discovered evidence could not have been found or known before the hearing on the merits.33 The application should disclose the new testimony, the names of the witnesses, and the character of the documentary evidence.34 If any order of the

31 1 Barbour, Ch. Pr. 355, 356; Reeves v. Keystone Bridge Co., 2 Ban. & A. 256, Fed. Cas. No 11,661; Nevinson v. Stables, 4 Russ. 210; Wood v. Griffith, 1 Mer. 35; Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 488; Boucher v. Boucher, 3 MacArthur (D. C.) 453; Taylor v. Boyd, 6 Heisk. (Tenn.) 611.

32 Heermans v. Montague (Va.) 20 S. E. 899. It is held that a motion for a rehearing is improper. Harman v. Lewis, 24 Fed. 530; Boucher v. Boucher, 3 MacArthur (D. C.) 453; Taylor v. Boyd, 6 Heisk. (Tenn.) 611.

33 Allis v. Stowell, 5 Ban. & A. 458, 85 Fed. 481.

84 McLeod v. City of New Albany, 24 U. S. App. 601, 66 Fed. 378; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856. As to the practice in Virginia, it is said: "It may be said in general that what is essential to a good bill of review is also essential to a petition for a rehearing; keeping in view, however, that a bill of review only lies to a final decree, and is not regarded as part of the cause in which the decree sought to be reviewed was rendered, but as a new suit, having for its object the correction of the decree in the former suit, while a petition for a rehearing lies only to an interlocutory decree, and is treated as part of the suit in which the decree is rendered. But the settled prac tice, nevertheless, is to treat a bill of review which is filed to an interlocutory decree as if it was in name a petition for rehearing, and a petition for rehearing, which is filed to a final decree, as if it was a bill of review, provided it conforms to the ordinary requirements of such