SUPPLEMENTAL BILLS IN THE NATURE OF BILLS OF REVIEW.

§ 974. In general.

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 brought before the court by a supplemental bill in the nature of a bill of review.1 The bill of review is proper after a final decree is enrolled; and the supplemental bill in the nature of one, before it is enrolled.2 To entitle a party

1 Barbour, Ch. Pr. 362.

22 Maddock, Ch. Pr. 409; Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 488; Mead v. Arms, 3 Vt. 148; Standish v. Radley, 2 Atk. 177. "A supplemental bill in the nature of a bill of review for want of proper parties will not be available, after a decree has been signed and enrolled." Burch v. Scott, 1 Gill & J. (Md.) 393. "If a decree has been made against a person who had no interest at all in the matter in dispute, or who had not such an interest as was sufficient to render the decree against him binding upon some person, claiming the same or similar interest, relief may be obtained against the error in the decree by a supplemental bill in the nature of a bill of review, as has been already mentioned in treating of supplemental bills. If a decree is made

against a tenant for life only, a remainderman in tail or in fee cannot defeat the proceedings against the tenant for life, but by a bill, showing the error in the decree, the incompetency of the tenant for life to sustain the suit, and the accruer of his own interest; and thereupon praying that the proceedings in the original cause may be reviewed, and that, for that purpose, the other party may appear to and answer this new bill, and that the rights of the parties may be properly ascertained. A bill of this nature, as it does not seek to alter a decree made against the plaintiff himself, or against any person under whom he claims, may be filed without leave of the court being first obtained for that purpose." Story, Eq. Pl. § 424, citing Cooper, Eq. Pl. 94, and cases there cited; Mitford, Eq. Pl. 92; Brown v. Vermuden, 1 Ch. Cas. 272; Osborne v. Usher, 6 Brown, Parl. Cas. 20. "In England it appears (1037)

to file such a bill, it is necessary that the new matters should be discovered after the decree, or at least after the time when it could have been introduced into the cause.3 The question always is not what the complainant knew, but what, with reasonable diligence, he might have known. Where the party was aware of the fact in question, or, by reasonable diligence, could have acquired the information, before the decree, it is held that he should have filed a supplemental bill shortly after the discovery, or after gaining that information which could put him upon inquiry, and in such a case he could not resort to a supplemental bill in the nature of a bill of review after going to a decree.5 The rule is not that a party should be taken strictly to know everything which he could have discovered. An instance is given by Lord Eldon of an omission to look into a box for documents which no human prudence would have suggested as the place of their deposit. An omission of this character will not prevent a bill. Such a bill may also bring before the court new matter discovered since the decree, although it could not have been used in evidence in the caus from not being regularly in issue. The new matter sought to

to be settled that a bill of review, or a supplemental bill in the nature of a bill of review, may be filed upon new and material evidence, discovered since publication, and of which the party could not have come to the knowledge before publication by the exercise of reasonable diligence." Ridgeway v. Toram, 2 Md. Ch. 303; Young v. Keighly, 16 Ves. 353. See, also, Wiser v. Blachly, 2 Johns. Ch. (N. Y.) 488; Finlayson v. Lipscomb, 16 Fla. 751; Pendleton v. Fay, 3 Paige (N. Y.) 204; Boynton v. Ingalls, 70 Me. 463; Perry v. Phelips, 17 Ves. 176; Partridge v. Usborne, 5 Russ. 195; Hollingsworth v. McDonald, 2 Har. & J. (Md.) 230, 3 Am. Dec. 545; Mead v. Arms, 3 Vt. 148. See Story, Eq. Pl. § 422.

81 Barbour, Ch. Pr. 363; Ord v. Noel, 6 Madd. 130.

41 Barbour, Ch. Pr. 363; Bingham v. Dawson, 1 Jac. 243; Young v. Keighly, 16 Ves. 352.

51 Barbour, Ch. Pr. 364; Pendleton v. Fay, 3 Paige (N. Y.) 206; Ridgeway v. Toram, 2 Md. Ch. 303.

1 Barbour, Ch. Pr. 364; Young v. Keighly, 16 Ves. 352; Boston & R.

Electric St. Ry. Co. v. Bemis Car-Box Co., 98 Fed. 121.

71 Barbour, Ch. Pr. 364; Partridge v. Usborne, 5 Russ. 195.

be brought before the court must be material.8 It must be such as, if unanswered in point of fact, would clearly entitle the complainant to a decree, or would raise a case of so much nicety and difficulty as to be a fit subject of judgment in a cause.

975. Frame of bill.

A supplemental bill in the nature of a bill of review nearly resembles, in its frame, a bill of review, except that, instead of praying that a former decree may be reviewed or reversed, it prays that the cause may be heard with respect to the new matter made the subject of a supplemental bill at the same time that it is reheard upon the original bill, and that the complainant may have such relief as the nature of the case made by the supplemental bill requires. It should also state the circumstances positively which entitle the party to file it, viz., that the decree has not been enrolled, and not merely state them in the alternative, praying one sort of relief as upon a bill of review if the decree has been enrolled, and, if not enrolled, then to have the benefit of it as upon a supplemental bill in the nature of a bill of review.10

976. Performance of decree.

A party will not be allowed, except under very special circumstances, to file a supplemental bill in the nature of a bill of review, or to prosecute it after he has obtained leave to file it, unless he performs all that the decree commands him to do; but he need only perform so much of the decree as, at the time of filing his bill, he is bound to perform. If the proceedings under the decree are not in such a state as to enable the adverse

81 Barbour, Ch. Pr. 364; Ord v. Noel, 6 Madd. 130; Norris v. Le Neve, 3 Atk. 26.

1 Barbour, Ch. Pr. 364; Ord v. Noel, 6 Madd. 130. See Blake v. Foster, 2 Moll. 357. Supplemental bills in the nature of bills of review seem to have been sometimes classed under the head of bills of review. Hill v. Phelps, 101 Fed. 650.

10 Story, Eq. Pl. § 425; Mitford, Eq. Pl. 91, 92; Cooper. Eq. Pl. 96; Perry v. Phelips, 17 Ves. 176.

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.11 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.1 § 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.

121 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

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