fresh bill will be permitted after demurrer allowed.105 If the demurrer, or demurrer and plea, are overruled, the usual decree is that the original decree be reversed, and that the er rors be allowed.106 On the argument of a demurrer to a bill of review for new matter, where several errors in the decree have been assigned, if the complainant should prevail only in one, the demurrer must be overruled.107 On argument of a demurrer to a bill of review for error apparent in the decree, the court has ordered the defendant to answer, saving the benefit of the demurrer to the hearing, and, on the hearing, has finally allowed the demurrer.108

§ 948. Burden of proof.

Where it is sought to review on the ground of fraud, the burden of proving the fraud is on the complainant in the bill of review,109

§ 949. What will be considered.

Upon a bill of review for error of law apparent on the face of the decree, the court cannot question the truth of the findings, but is confined to errors apparent on the face of the decree.110 The decree, within the meaning of the rule, includes,

105 2 Barbour, Ch. Pr. 100; Webb v. Pell, 3 Paige (N. Y.) 368; Woots v. Tucker, 2 Vern. 120; Dunny v. Filmore, 1 Vern. 135; Pitt v. Arglass, 1 Vern. 441; Carey v. Giles, 10 Ga. 9.

106 2 Barbour, Ch. Pr. 100; Cook v. Bamfield, 3 Swanst. 607; Bruschke v. Nord Chicago Schuetzen Verein, 145 Ill. 433, 34 N. E. 417; Carey v. Giles, 10 Ga. 9; Guerry v. Perryman, 12 Ga. 14.

107 2 Barbour, Ch. Pr. 99.

108 2 Barbour, Ch. Pr. 100; Mitford, Eq. Pl. 204. A decree for review, whether entered upon demurrer or upon evidence heard, is interlocutory merely, and not open to consideration upon appeal until after the cause has proceeded de novo to a final hearing. Gardner v. Dwelling House Ins. Co., 44 Ill. App. 156.

10 Vanpelt v. Hutchinson, 114 Ill. 435, 2 N. E. 491.

110 Griggs v. Gear, 8 Ill. 2; Getzler v. Saroni, 18 Ill. 511; Ivey v. McKinnon, 84 N. C. 651; Robertson v. McCollum (Tenn. Ch. App.) 60 S. W. 170; Buffington v. Harvey, 95 U. S. 99; Loftis v. Butler (Tenn. Ch. App.) 58 S. W. 886.

according to the English practice, not merely the final judgment, but the bill, the answer, the facts found, and the adjudication thereof.111 Where facts are found which are not founded upon, or not consistent with, the averments of the bill, they must be rejected.112

§ 950. Effect of filing the bill.

The filing of a bill of review does not, of itself, operate as a suspension of the decree, or prevent its execution. Express action of the court is necessary to obtain such suspension or prevention.113 If a bill of review is sustained, the court will order the restitution of the money paid under the decree.114

§ 951. Costs.

The court may, in its discretion, upon sustaining a bill of review, deny costs to the complainant therein,115 and need not order a restitution of the costs paid by the complainant upon

111 Griggs v. Gear, 8 Ill. 2; Ebert v. Gerding, 116 Ill. 216, 5 N. E. 591; Caller v. Shields, 2 Stew. & P. (Ala.) 417; Sharp v. Shenandoah Furnace Co. (Va.) 40 S. E. 103; Putnam v. Day, 22 Wall. (U. S.) 60.

112 Griggs v. Gear, 8 Ill. 2; Harback v. Gear, 8 Ill. 18.

118 Burch v. Scott, 1 Gill & J. (Md.) 393, 402. For staying execution of decree complained of, see Cochran v. Rison, 20 Ala. 463; Bennett v. Brown, 56 Ga. 216; Denson v. Denson, 33 Miss. 560; Hogan v. Davis, 3 Ala. 70; Manufacturers' Paper Co. v. Lindblom, 68 Ill. App. 539. “According to the English law, neither the filing of a petition for rehearing, nor a bill in the nature of a bill of review, nor a bill of review for error apparent on the face of the decree, nor a bill of review for new matter after leave given, nor an original bill to set aside a decree on the ground of fraud, nor a bill to open an enrolled decree, and let in the merits, has ever, or under any circumstances, been considered, in itself, as a suspension of the execution of the decree. The party having the decree in all such cases is allowed to proceed unless specially and expressly restrained, which is never done but on the sum decreed being brought into court, or on good security being given. Similar law and practice have been long established here." Burch v. Scott, 1 Gill & J. (Md.) 393.

114 Nelson v. Suddarth, 1 Hen. & M. (Va.) 350. See Miller v. Clark, 52 Fed. 900; Burch v. Scott, 1 Gill & J. (Md.) 398..

115 Miller v. Clark, 52 Fed. 900.

the dismissal of his bill for want of equity in the original

116 Miller v. Clark, 52 Fed. 900. See, also, Mickle v. Maxfield, 42 Mich. 304, 3 N. W. 961.

(1004)

CHAPTER LI.

BILLS TO IMPEACH DECREE FOR FRAUD.

$ 952. In general.

A court of equity is always open to hear complaints of fraud committed by means of judicial proceedings. In such cases the court does not act as a court of review, nor does it inquire into any irregularities or errors of proceeding in another court, but it will scrutinize the conduct of the parties, and, if it finds that they have been guilty of fraud in obtaining a decree, it will deprive them of the benefit of it, and of any inequitable advantage which they have derived under it, and will restore the parties to their former situation, whatever their rights may be.1 Relief is sought by an original bill. There is no instance of its being done by petition, although it seems once to have been thought that a decree, as well as any interlocutory order, could be set

1 Hendryx v. Perkins, 114 Fed. 801; Mitford, Eq. Pl. 92, 94; Cooper, Eq. Pl. 96; Story, Eq. Pl. § 426; Kemp v. Squire, 1 Ves. Sr. 205; Callaway v. Alexander, 8 Leigh (Va.) 114; Farwell v. Great Western Telegraph Co., 161 Ill. 522, 44 N. E. 891; Herbert v. Rowles, 30 Md. 278; Hitch v. Fenby, 4 Md. Ch. 190. A bill of this sort is an original bill in the nature of a bill of review. Story, Eq. Pl. § 426; Mussel v. Morgan, 3 Brown Ch. 74; Haskins v. Rose, 2 Lea (Tenn.) 708; Ex parte Smith, 34 Ala. 455; Singleton v. Singleton, 8 B. Mon. (Ky.) 340. "The difference between a bill of review and a bill to impeach for fraud (the bill now under discussion partaking of the nature of both) is well set out in the case of Berdanatti v. Sexton, 2 Tenn. Ch. 704, where the court says: "The object and effect of a bill for fraud, even if the fraud consists of want of notice, are to vacate the former decree, not to retry the case; whereas the object and effect of a bill of review are to reverse the decree, so far as it is erroneous, and to retry the case upon the original record, or the original record and new proof, as the bill is for error apparent or newly-discovered evidence.'" Wilson v. Schaefer (Tenn.) 64 S. W.208.

aside for fraud by petition only. When a decree has been made by consent, and the consent has been fraudulently obtained, the party aggrieved can only be relieved by original bill.3 And where the enrollment of the decree by one party is a fraud or surprise upon the other, it may be vacated. In order to set aside for fraud a decree, actual, positive fraud must be shown. Mere constructive fraud has been held insufficient, at all events, after long delay. 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 subject-matter of the suit, the concealment of the trust, or subsequent conveyance or incumbrance, or will, ought to be treated as fraud. It has also been said that, where an improper decree has been made against an infant without actual fraud, it ought to be impeached by original bill. The fraud must be extrinsic or collateral; that is to say,

2 Story, Eq. Pl. § 426; Sheldon v. Aland, 3 P. Wms. 111, overruled in Mussel v. Morgan, 3 Brown Ch. 74.

3 Mitford, Eq. Pl. 94; Bennett v. Hamill, 2 Schoales & L. 566.

4 Mitford, Eq. Pl. 94; Buck v. Fawcett, 3 P. Wms. 242; Stevens ▼. Guppy, 1 Turn. & R. 178. "It must be regarded as well settled that a stranger to a suit, who, if a judgment therein were given full credit and effect, would be prejudiced in regard to some pre-existing right, is permitted to impeach the judgment. Being neither a party to the action nor entitled to manage the cause or appeal from the judgment, he is allowed by law to impeach it; otherwise, he would be without remedy. 2 Freeman, Judgm. (4th Ed.) §§ 335, 505a, 512; Pacific Railroad of Missouri v. Missouri Pac. Ry. Co., 111 U. S. 505; Sayre v. Elyton Land Co., 73 Ala. 85; Bergman v. Hutcheson, 60 Miss. 872; Carey v. Houston & T. C. Ry. Co., 150 U. S. 171; Schuster v. Rader, 13 Colo. 329, 22 Pac. 505; Palmer v. Martindell, 43 N. J. Eq. 90, 10 Atl. 802; Edson v. Cumings, 52 Mich. 52, 17 N. W. 693." Richardson v. Loree, 94 Fed. 375.

5 Patch v. Ward, 3 Ch. App. 203

• Mitford, Eq. Pl. 93; Story, Eq. Pl. § 427; Cooper, Eq. PL 96-98; Collins v. Loftus, 10 Leigh (Va.) 9.