signed and enrolled; which said decree your orator insists is erroneous, and ought to be reviewed, reversed, and set aside for many apparent errors and imperfections, inasmuch as it appears by your orator's answer [here insert the apparent error]. And no proof being made thereof, no decree ought to have been made or grounded thereon, but the said bill ought to have been dismissed for the reasons aforesaid. For all which errors and imperfections in the said decree appearing on the face thereof your orator has brought this, his bill of review, to be relieved in the premises.

In consideration whereof, and inasmuch as such errors and imperfections appear in the body of the said decree, your orator hopes that the said decree will be reversed and set aside, and no further proceedings had thereon.

To the end, therefore, that the said C. D. 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 things 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, and that, for the reasons and under the cir cumstances aforesaid, the said decree may be reviewed, reversed, and set aside, and no further proceedings taken thereon:

May it please your honors to grant unto your orator a writ of subpoena issuing out of and under the seal of this honorable court, to be directed to the said C. D., commanding him by a certain day, and under a certain penalty, to be and appear before your honors, 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, etc.

G. H.,

Solicitor for Complainant.

A. B., Complainant.67

§ 935. Form of bill of review on discovery of new matter.

[Title of court and cause, and address to the court.]

Humbly complaining, shows unto your honors your orator A. B., of, etc. That on or about, C. D., of, etc., the defendant herein. after named, exhibited his bill of complaint in this honorable court against your orator, and thereby set forth, etc. [here insert the original bill]. And your orator, being duly served with process for that pur

67 This form is taken from 2 Barbour, Ch. Pr. 561. It is to be noted that, under the practice in Illinois and some other jurisdictions, the bill and other pleadings must be set out in haec verba. See supra, § 933.

day of

pose, appeared and put in his answer to the said bill, to the effect fol. lowing: [Here state the substance of the answer.] And the said C. D. replied to the said answer; and issue having been joined and witnesses examined, and the proofs closed [or, the said C. D. joined issue on the answer, and], the said cause was set down to be heard, and was heard before your honors on the when a decree was pronounced whereby your honors decreed that your orator's title to the premises was valid and effectual, after which the said C. D. petitioned your honors for a rehearing, and the said cause was accordingly reheard, and a decree of reversal made by your honors on the ground of the said C. D. being the heir at law of the said E. F., deceased, and which said decree of reversal was afterwards duly signed and enrolled, as by the said decree and other proceedings now remaining filed as of record in this honorable court, reference being thereto had, will appear. And your orator shows unto your honors, by leave of this honorable court first had and obtained for that purpose, by way of supplement, that, since the signing of the said decree of reversal, your orator has discovered, 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., while so seised, and when of sound mind, duly made and published his last will and testament in writing, bearing date on the

day of —, which was executed by him, and attested according to law, and thereby gave and devised unto the said J. W., 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 [to which your orator claims to be entitled as purchaser thereof from the said J. W.]. And your orator further shows unto your honors that, since the said decree of reversal was so made, signed, and enrolled, as aforesaid, and on or about the said C. D. departed this life intestate, leaving G. H., of, etc. [the defendant hereinafter named], his heir at law, who, as such, claims to be entitled to the said hereditaments and premises, in exclusion of your orator. And your orator is advised and insists that, under the aforesaid circumstances, the said last-mentioned decree, in consequence of the discovery of such new matter as aforesaid, ought to be reviewed and reversed, and that the first decree, declaring your orator entitled to the said hereditaments and premises, should stand and be established and confirmed; and for effectuating the same, the said several proceedings, which became abated by the death of the said C. D., should stand and be revived against the said G. H. as his heir at law.

To the end, therefore, that the said G. H. may, upon his corporal oath, to the best and utmost of his knowledge, information, and belief, full, true, direct, and perfect answer make to all and singular the matters aforesaid [or, if an answer under oath is meant to be waived, omit the words, "upon his corporal oath," and insert the words, "the answer (993)

under oath being hereby waived"], and that as fully and particularly as if the same were here repeated, and he distinctly interrogated thereto, and more especially that he may, in manner aforesaid, answer and set forth whether [here insert the interrogatories to be answered]; and that the said suit may be revived against the said G. H., or that he may show good cause to the contrary, and that the said last decree, and all proceedings thereon, may be reviewed and reversed, and the said first-mentioned decree may stand and be established and confirmed, and be added to, by the said will being declared a good and effectual devise of such hereditaments and premises aforesaid; and that the said G. H. may be decreed to put your orator into possession of the said hereditaments and premises, and in the same situation, in every respect, as far as circumstances will now permit, as your orator would have been in case such last decree had never been pronounced and executed; and that your orator may have such other and further relief as to this honorable court shall seem meet, or as equity shall require:

May it please your honors to grant unto your orator a writ of subpoena to revive and answer, issuing out of and under the seal of this honorable court, to be directed to the said G. H., thereby commanding him, at a certain day and under a certain penalty, to be therein limited, personally to be and appear before your honors in this honorable court, then and there to answer the premises, and to show cause, if he can, why the said suit, and the proceedings therein had, should not stand and be revived against him in the same plight and condition as the same were at the time of the abatement thereof, and, further, to stand to and to abide such order and decree in the premises as to your honors shall seem meet. And your orator shall ever pray.

R. S., Solicitor for Complainant.

A. B., Complainant.

[Add verification.]68

§ 936. In what court filed.

A bill of review is filed in the court which rendered the deAn application for leave to file a bill to review a de

cree. 69

68 The above form is taken from Willis, Pleadings in Eq. 372. 69 Windett v. Connecticut Mut. Life Ins. Co., 27 Ill. App. 68; Lester v. Mathews, 58 Ga. 403; Moore v. Bracken, 27 Ill. 23; Griggs v. Gear, 8 Ill. 10; Hurt v. Long, 90 Tenn. 445, 16 S. W. 968; Cox v. Bank of Hartsville (Tenn. Ch. App.) 63 S. W. 237; Kingsbury v. Buckner, 134 U. S. 650; Franklin Sav. Bank v. Taylor, 9 U. S. App. 406, 53 Fed. 854. A bill will not lie in a state court to review a decree of a federal court. Windett v. Connecticut Mut. Life Ins. Co., 27 Ill. App. 68.

cree must be made to the court of chancery in which the decree was originally rendered.70

§ 937. Leave to file.

A bill of review for error apparent of record may be brought as a matter of right, without leave of court.71 Leave of court must be obtained before a bill of review can be filed upon a discovery of new matter. Such leave will not be granted without an affidavit that the new matter could not be produced or used by the party claiming the benefit of it at the time when the decree was made. Such affidavit must state the nature of the matter, in order that the court may exercise its judgment upon its relevancy and materiality.72 The application for this pur- . pose should be made by petition, which should state the nature of the suit, the decree and the errors of law, or the new matters, as the case may be, upon which the application is founded, and pray for liberty to file a bill of review to bring such decree into review. It must describe the new evidence distinctly and specifically, and state when it was discovered, and its bearing on the decree.73 Notice of the application should be given.74 The affidavit must satisfy the court that the alleged 70 Schaefer v. Wunderle, 154 Ill. 577, 39 N. E. 623; McGregor v. Gardner, 16 Iowa, 538; Putnam v. Clark, 35 N. J. Eq. 145; Slason v. Cannon, 19 Vt. 219; Parish v. Marvin, 15 Wis. 247.

71 2 Barbour, Ch. Pr. 95; Wood v. Wood, 59 Ark. 441, 27 S. W. 641, 43 Am. St. Rep. 42, 28 L. R. A. 157; Denson v. Denson, 33 Miss. 560; Webb v. Pell, 1 Paige (N. Y.) 564; Barnum v. McDaniels, 6 Vt. 177; Copeland v. Bruning, 104 Fed. 169; Dunfee v. Childs, 45 W. Va. 155, 30 S. E. 102; Perry v. Phelips, 17 Ves. 178.

72 2 Barbour, Ch. Pr. 95; Dunfee v. Childs, 45 W. Va. 155, 30 S. E. 102; Barton v. Barbour, 104 U. S. 126; Webster v. Diamond, 36 Ark. 532; Vaughan v. Cutrer, 49 Miss. 782; Knight v. Atkisson, 2 Tenn. Ch. 384; Hatcher's Adm'r v. Hatcher's Heirs, 77 Va. 600; Buckingham v. Corning, 29 N. J. Eq. 238; Massie v. Graham, 3 McLean, 41, Fed. Cas. No. 9,263; Colville v. Colville, 9 Humph. (Tenn.) 524; Nichols v. Nichols' Heirs, 8 W. Va. 174; Ricker v. Powell, 100 U. S. 104; Elzas v. Elzas, 183 Ill. 132, 55 N. E. 673.

73 2 Barbour, Ch. Pr. 95; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Reynolds v. Florida Cent. & P. R. Co. (Fla.) 28 So. 861. 74 Love v. Blewit, 21 N. C. 108; Wallamet Iron Bridge Co. v. Hatch, 19 Fed. 347.

new matter was not known to the petitioner, and could not have been discovered, produced, or used by him, by the exercise of reasonable diligence, before the entry of the decree. It should be positive, and not merely upon information and belief,75 and should state distinctly the new matter relied on, and, it is said, be supported by affidavits of witnesses by whom it is proposed to prove the facts, or some excuse shown for the omission.76 It is not sufficient to state that the petitioner expects to prove certain facts. He must state the exact evidence to establish them. On the hearing of such petition, affidavits may be admitted on both sides, if necessary, to explain the nature of the evidence. Upon such application, leave to file a bill of review is not a matter of right, but of discretion.78 The court may refuse it to the party applying, and grant it for the protection of others.7 79 If the bill is filed without leave, it will be dismissed on motion.so

77

§ 938. Form of order to file bill of review.

[Title of court and cause.]

On reading and filing the petition of A. B., defendant, praying for

75 Schaefer v. Wunderle, 154 Ill. 577, 39 N. E. 623; Whitten v. Saunders, 75 Va. 573.

76 Cole v. Littledale, 63 Ill. App. 490; Schaefer v. Wunderle, 154 Ill 577, 39 N. E. 623.

772 Barbour, Ch. Pr. 95; Dexter v. Arnold, 5 Mason, 303, Fed. Cas. No. 3,856; Long v. Granberry, 2 Tenn. Ch. 85; Blandy v. Griffith, 6 Fish. Pat. Cas. 434, Fed. Cas. No. 1,530; Loth v. Loth, 116 Mich. 634, 74 N. W. 1046.

78 2 Barbour, Ch. Pr. 95; Cole v. Littledale, 63 Ill. App. 490; Hollingsworth v. McDonald, 2 Har. & J. (Md.) 230; Thomas v. Brockenbrough, 10 Wheat. (U. S.) 146; Murrell v. Smith, 51 Ala. 301; Winchester v. Winchester, 1 Head (Tenn.) 460; Ricker v. Powell, 100 U. S. 104; Stockley v. Stockley, 93 Mich. 307, 53 N. W. 523; Reynolds v. Florida Cent. & P. R. Co. (Fla.) 28 So. 861.

79 2 Barbour, Ch. Pr. 95; Hodges v. Mullikin, 1 Bland (Md.) 511. 80 2 Barbour, Ch. Pr. 96; Carroll v. Parran, 1 Bland (Md.) 125; Webster v. Diamond, 36 Ark. 532. It is held in some cases that it may be raised by demurrer. Henderson v. Cook, 4 Drew. 306; Finley

v. Taylor, 8 Baxt. (Tenn.) 237. But see Dance v. McGregor, 5 Humph. (Tenn.) 428.