not in the subject of the litigation,-not in anything which was involved in the issues tried, but fraud practiced upon the party or upon the court during the trial or in prosecuting the suit, or in obtaining the decree. Generally, where a successful party has by meditated and intentional contrivance kept the opposing side and the court in ignorance of material and controlling facts, and thereby secured an unjust advantage or decree, a bill will lie to impeach and annul such decree, but such decree will not be set aside because founded on a fraudulent instrument or perjured evidence, or for any matter which was actually presented and considered in the decree assailed.8 A decree obtained without making those persons parties to the suit in which it is had, whose rights are affected thereby, is fraudulent and void as to those parties, and even a purchaser under it, having notice of the defect, is not protected by such a decree.9 953. When to be filed. The period of limitation applicable to bills of review has frequently been adhered to in the case of bills to impeach decrees for fraud.10 § 954. Frame of bill. It should state the decree and the proceedings which led to it, with the circumstances of fraud, or whatever the ground may be on which it is impeached.11 It must be made clearly Reed v. Stanly, 89 Fed. 430; United States v. Throckmorton, 98 U. S. 61; Graver v. Faurot, 46 U. S. App. 268, 76 Fed. 257; Pittsburg, C., C. & St. L. Ry. Co. v. Keokuk & H. Bridge Co., 107 Fed. 781. • Kimberly v. Arms, 40 Fed. 548; Vance v. Burbank, 101 U. S. 519; United States v. Throckmorton, 98 U. S. 66; Cox v. Bank of Hartsville (Tenn. Ch. App.) 63 S. W. 237; Hendryx v. Perkins, 114 Fed. 801. Story, Eq. Pl. § 427; Cooper, Eq. Pl. 96, 98. A decree cannot be impeached for fraud in inducing a defendant to enter an appearance to save the costs of service, where defendant has ample opportunity to contest the equities asserted. Fellers v. Rainey, 82 Ill. 114. 10 Hendryx v. Perkins, 114 Fed. 801; Reed v. Stanly, 89 Fed. 430. See Evans v. Bacon, 99 Mass. 213; Gordon's Adm'r v. Ross, 63 Ala. 363. 11 Story, Eq. Pl. § 428; Cooper, Eq. Pl. 98; Mitford, Eq. Pl. 94; to appear that the decree has no other foundation than the fraud charged, and that, if there had been no fraud, there would have been no decree.12 The bill must show a meritorious defense to the suit.13 The prayer of a bill to set aside a decree for fraud must necessarily be varied according to the nature of the fraud or improper means used, and the extent of their operation in obtaining an improper decision of the court.14 And it may be sometimes necessary, besides the prayer for other relief adapted to the complainant's case, to pray for an injunction to prevent the enforcement of the decree.15 A bill to set aside a decree for fraud, for error apparent, and for newly-discovered evidence is multifarious.16 All the parties to the original suit, or their representatives, must be joined as parties.17 § 955. Filing the bill. A bill based solely on fraud in obtaining a decree may be filed without leave of the court rendering such decree.18 A bill to impeach for fraud a decree entered on a mandate from the Giffard v. Hort, 1 Schoales & L. 386; Kennedy v. Daly, 1 Schoales & L 355. 12 Dringer v. Receiver of Erie Ry. Co., 42 N. J. Eq. 573, 8 Atl. 811. And the burden is on the complainant to prove the fraud alleged. Vanpelt v. Hutchinson, 114 Ill. 435, 2 N. E. 491. 13 Kimberly v. Arms, 40 Fed. 548; White v. Crow, 110 U. S. 183. 14 Story, Eq. Pl. § 428; Giffard v. Hort, 1 Schoales & L. 386. 15 4 Minor, Inst. Com. & St. Law (2d Ed.) 1270 (1138). On demurrer to a bill to impeach a decree on the ground or fraud, the court cannot consider anything not contained in the bill and the exhibits thereto annexed, and cannot look into the files and records of the proceedings in the court rendering the judgment sought to be impeached. Pacific Railroad of Missouri v. Missouri Pac. Ry. Co., 111 U. S. 505; Richardson v. Loree, 94 Fed. 375. 16 Kimberly v. Arms, 40 Fed. 548; Perry v. Phelips, 17 Ves. 183; Campbell v. Mackay, 1 Mylne & C. 618; Attorney General v. St. John's College, 7 Sim. 254; Gordon's Adm'r v. Ross, 63 Ala. 363; Berdanatti v. Sexton, 2 Tenn. Ch. 704. 17 Harwood v. Cincinnati & C. A. L. R. Co., 17 Wall. (U. S.) 78; Ralston v. Sharon, 51 Fed. 702. 18 Kimberly v. Arms, 40 Fed. 548. circuit court of appeals may be filed without leave of such court, or of the circuit court in which it is filed.19 Upon application for leave to file a bill of review for matters of fact newly discovered, which are insufficient to support the bill, the court will not separate from such allegations other allegations of fraud in obtaining the original decree, and permit the bill to be filed as a bill to set aside the decree for fraud.20 Where application is for leave to file a bill as a whole, and not in part, and if, as a whole, it requires leave, the part which, if it stood alone, could be put on file without leave, must stand or fall with the incumbrances that have been attached to it.21 $ 956. Form of bill to impeach a decree obtained by fraud. [Title of court, and address to the court.] Humbly complaining, shows unto your honors your orator, A. B., of, etc.: That T. B., late of, etc., deceased, your orator's late father, during his life, and on or about the day of was seised in his demesne, as of fee, of and in the real estate hereinafter particularly described; and by indenture of that date, made between the said T. B. of the one part, and C. D., of, etc., the defendant hereinafter named, of the other part, the said T. B., in consideration of $ bargained, sold, and conveyed unto the said T. B., his heirs and assigns, all, etc. [here describe the mortgaged premises], subject to redemption on payment of the said principal money and lawful interest at the time therein mentioned, and long since past, as by the said indenture, reference being thereto had, will more fully appear. And your orator further shows that the said T. B. departed this life on or about leaving your orator his heir at law and only child, then an infant under twenty-one years of age, that is to say, of the 19 Ritchie v. Burke, 109 Fed. 16. 20 Kimberly v. Arms, 40 Fed. 548; Cox v. Bank of Hartsville (Tenn. Ch. App.) 63 S. W. 237. See Terry v. Commercial Bank of Alabama, 92 U. S. 454; Elliott v. Balcom, 11 Gray (Mass.) 286. 21 Kimberly v. Arms, 40 Fed. 548. A federal court has jurisdiction to set aside the decree of a federal court, irrespective of the citizenship of the parties to the new proceedings. Pacific Railroad of Missouri v. Missouri Pac. Ry. Co., 111 U. S. 505. A bill to set aside a judgment or decree of a state court on the ground of fraud may be filed in a federal court when the requisite difference of citizenship exists. Marshall v. Holmes, 141 U. S. 589; Barrow v. Hunton, 99 U. S. 80; Gaines v. Fuentes, 92 U. S. 10; Johnson v. Waters, 111 U. S. 640; Hendryx v. Perkins, 114 Fed. 801. age of seven years, or thereabouts, him surviving. And your orator further shows that, during your orator's minority, on or about the said C. D. filed his bill of complaint in this honorable court against your orator for a foreclosure of your orator's right and equity of redemption in the said mortgaged premises, but your orator was not represented in such bill to be then an infant; and the said C. D. caused and procured one L. M., since deceased, who acted in the management of the affairs of your orator's said father, to put in an answer in the name of your orator, and without ever acquainting your orator, or any of his friends or relations, therewith, in which said answer a much greater sum was stated to be due from your orator, on the said mortgage security, to the said C. D., than in fact was really owing to him, and for which it was untruly stated that the said mortgaged premises were an insufficient security; and in conse quence of such answer being put in, the said C. D. afterwards, in conjunction with the said L. M., on or about — , obtained an absolute decree of foreclosure against your orator, which your orator has only lately discovered, and of which your orator had no notice, and in which said decree no day is given to your orator, who was an infant when the same was pronounced, to show cause against it when he came of age, as by the said proceedings, now remaining as of record in this honorable court, reference thereto being had, will more fully appear. And your orator further shows that your orator, on the day of last, attained the age of twenty-one years, and shortly afterwards, having discovered that such transactions had taken place during his minority as aforesaid, by himself and his agents, represented the same to the said C. D., and requested him to deliver up possession of the said mortgaged premises to your orator, on being paid the principal money and interest, if any, actually and fairly due thereon, which your orator offered, and has at all times been ready, to pay, and which would have been paid by the personal representatives of the said T. B. out of his personal assets, during your orator's minority, had any application been made for that purpose. And your orator hoped that the said C. D. would not have insisted on the said decree of foreclosure, so fraudulently obtained as aforesaid, but would have permitted your orator to redeem the said mortgaged premises, as he ought to have done. But now so it is, may it please your honors, the said C. D., combining and confederating with divers persons at present unknown to your orator, whose names, when discovered, your orator prays he may be at liberty to insert herein with apt words to charge them as parties defendant hereto, and contriving how to wrong and injure your orator in the premises, he, the said C. D., absolutely refuses to comply with such requests, and he at times pretends the said decree of foreclosure was fairly and properly obtained, and that a day was therein given to your orator, when of age, to show cause against the same, and that your orator has neglected to do so, and that your orator is neither en titled to redeem nor to travel into the said accounts; whereas your orator charges the contrary thereof to be true, and that your orator only attained the age of twenty-one years on the said day of and that he has since discovered the several matters aforesaid by searching in the proper offices of this honorable court; and your orator expressly charges that, under the circumstances aforesaid, the said decree, so fraudulently obtained, as herein before mentioned, ought to be set aside, and the complainant ought not to be precluded thereby, or in any other manner, from redeeming the said mortgaged premises, of which the said C. D. has possessed himself, by such means as aforesaid. All of which actings, doings, and pretenses of the said defendant are contrary to equity and good conscience, and tend to the manifest wrong, injury, and oppression of your orator in the premises. In tender consideration thereof, and forasmuch as your orator is remediless in the premises, at and by the strict rules of the common law, and is only relievable in a court of equity, where matters of this nature are properly cognizable and relievable: To the end, therefore, that the said defendant, C. D., and his confederates when discovered, may, if they can, show why your orator should not have the relief hereby prayed, and may, upon their corporal oaths, according to the best and utmost of their several and respective knowledge, remembrance, information, and belief, full, true, direct, and perfect answer make to all and singular the matters and charges aforesaid, and that as fully and particularly as if the same were here again repeated, and they thereunto particularly interrogated; and more especially set forth and discover [here insert interrogatories to be answered by defendants; or, if answer under oath is not desired, omit the words, "upon their several and respective corporal oaths," and insert after the words "answer make," the words, "but not under oath, answer under oath of them and each of them being hereby waived"], and that the said decree of foreclosure may, for the reasons and under the circumstances aforesaid, be set aside by this honorable court, and declared to be fraudulent and void; and that an account may be taken of what, if anything, is now due to the said C. D. for principal and interest on the said mortgage, and that an account may also be taken of the rents and profits of the said mortgaged premises, which have, or without his willful default might have, been received by or on behalf of the said C. D., and, if the same shall appear to have been more than the principal and interest due on the said mortgage, then that the residue thereof may be paid over to your orator, and that your orator may be at liberty to redeem the said mortgaged premises on payment of the principal and interest, if any, remaining due on the said security; and that the said C. D. may be decreed, on being paid such principal money and interest, to deliver up possession of the said mortgaged premises, free from all incumbrances, to your orator, or as he shall appoint, and to deliver up all title deeds and writings relating thereto. And that your orator may have such other relief in |