vantage of the plaintiff's proceeding without revivor. It was ordered, that the defendant fhould be examined upon interrogatories, whether before his answer he knew of the plaintiff's marriage; and if fo, then the plaintiff [Ca. Rep. 73 to proceed without revivor.] 4.] [Said, if upon a plea of outlawry, and the fuit be put Outlawry. fine die, after the reverfal, &c. the fuit must be revived.] [If a plaintiff dies after publication, his executors or Death of plainadministrators may not exhibit a new bill upon the same tiff. matter, whereby to make further proofs; but are to keep to a bill of revivor, and to proceed upon the ex- [Toth. 174.] aminations already published, if they will go on.] [A decree was figned and inrolled, omitting part of Scire facias. the matter decreed by the decretal order; the defendant being dead, (fo that there was no helping it by motion,) the bill of revivor was brought to revive (as was alledged) that part of the decree omitted, though in truth it went to the whole decree. The defendant pleads, &c. that the decree being inrolled, a bill lay not, but a fcire facias. The plea and demurrer were over-ruled. And it was faid, a fubpœnâ fcire facias would only have revived the decree, and the proceedings before it, not those fince.] [1 Ch. Ca. 37-] [A bill was brought to revive a decree, where there Cofts. had been fome proceedings, touching cofts after the [2 Ch.Rep. 67.] decree, and adjudged good.] [This bill lies not to revive a decree made for cofts [2 Ch. Ca 7.] only.] Á bill of revivor may be brought for duty and cofts not taxed in defendant's lifetime, but not for cofts alone. If a bill of revivor revive more than it ought, it will be bad; as where the bill fought to revive all the proceedings, and particularly an order by confent, which confent was determined by the marriage of the feme executrix, who was a party to it. The demurrer was allowed. [If upon this bill a defendant appears, but does not fhew good caufe against the revival, the fuit is put in the fame plight thereupon, as before the abatement.] (2 Ch.Rep. 195, 246.] Bunb. 160. 3 Atk. 772. 812. 2 Vez. 462. 465. 580 Bro. 438. Ch. Ca. 77. [So it is after the time for answering is out, but it is Appearance. now held the defendant muft appear.] In a bill of revivor, merely the defendant muft appear Appearance. in a town caufe, in four days exclufive, of the fervice of fubpoena; or in default, procefs of contempt may be iffued, and in eight days after appearance, either thew caufe Hind. 48. Answer. caufe against the bill or fubmit to anfwer; and in default, the fuit may be revived without anfwer, if none be required upon motion as a matter of course. This motion is made upon an allegation that the time allowed for anfwering by the courfe of the court is expired. If defendant by anfwer only (not by plea or demurrer) infifts plaintiff is not entitled to revive, yet the Court on motion will order proceedings to be revived. 3 P. Will. 48. But if plaintiff does not fhew a good title to revive, he will fail at the hearing. 1 Ch. Ca. 37. If part of the decretal order be omitted in the decree figned and inrolled, plaintiff may revive by bill of revivor. If a bill of revivor revive the whole decree, which was to pay money and to convey lands, it may ftand as Eq. Ca. Ab. 4. to the perfonalty, if the executor only revives, and not as to the realty, though the demurrer to the bill be general. 1 Vern, 308. Eq. Ca, Ab. 2. Ch. Ca. 56. 2 Vez. 399. A defendant who has not anfwered, may be omitted in the bill of revivor. If one plaintiff refufe to join in revivor, another may bring fuch bill and make him, who refufes defendant. Answer to a bill of revivor to revive part of an order omitted in the inrolment of the decree tended to draw into question and re-examination matters formerly fettled. An order was made that fuch matters as were examined to before, be not re-examined. Sed quære. By confent of all parties interested, the Court may Money in court, order money to be paid out of court without reviving the fuit. What. BILL OF REVIEW. VIDE Error. [IS to examine and reverse a former decree upon error of law appearing in the body of the decree itself, without averment or further examination of any matter of of fact before the decree, or of any matter refting upon [Prac H. Ch. 8. record, which might have been had at the time of the Px. Alm. 45.] decree.] {As in cafe of revivor, fo here, only parties or privies Parties or can ordinarily bring this bill.] privies. Devifee. Affignee. [Yet in fome cafes, where a man is affected and grieved by a decree, he may have this bill; as where a parifh was fued, and four of the parishioners named Ch. Ca. 272. only to defend, another parishioner may bring this bill.] A devifee is not entitled to a bill of review of a decree against the teftator, not being in privity to him. Affignee cannot in any cafe have a bill of review. [Leave to bring this bill may be had on petition or motion] Supported by an affidavit, ftating that the new matter discovered could not be had or uled at the time review. when the decree was made; and that the party or his agents were not then apprized thereof; but that it came 1 to their knowledge fince the decree, or fince the time when it could have been used for his advantage in the fame caufe. Vern. 417. leave to bring 2 How to obtain 3 Vez. 434. Vez. 576. 2 Atk. 178. Atk. 35. Hind. 56. [In cafe of any difmiflion, not on hearing, if a new Difmiffion to be bill be irregularly brought, the difmiffion is to be pleaded.] pleaded. [Though this bill cannot be brought on matters in fact, or upon other record than the decree, yet if there 2 Atk. 178. 2 Vez. 576. be oath made of the difcovery of fuch new matter, which 2 P. W. 283. could not poffibly be had or used at the time when the [Toth, 48.] decree paffed, a bill of review may be exhibited by leave of the Court, non aliter.] But the new matter difcovered fince must be fhewn New matter reto be relevant, or the Court will not, merely because it levant. is new matter, direct a new bill to be brought, where 2 Atk. 529. it is entirely vain and fruitless. [But where a caufe is difmiffed upon full hearing, and Difmiffion upon the difmiffion is figned and inrolled, it cannot be retained hearing. again but by bill of review, and that in fome fpecial [Px. Alm. 45.] cafes.] [This bill was brought upon a fuggeftion that the plaintiff would now prove a tender and refufal, which he could not prove before, but upon search of precedents [2 Ch.Rep. 66.] none warranting it, it was difmified.] tified. [But in cafe of mifrating or mifnumbering only, that Mifrating recbeing a matter demonftrative, it may be explained and reconciled by order without bill of review.] [Heretofore this bill should not be brought, except the party who preferred it entered into a recognizance with fureties, Ld. Bac, Ord. 2. Sureties for- [Px. Alm. 45. Toth. 47] Depofit. Depofit. Supplemental bill. Ord Ld. Hard's, 17 Oct. 1741. 2 Atk. 139. 2 Vez. 596. 2 Atk. 178. Rehearing. When made. Decree muft be obeyed. fureties, to fatisfy cofts and damages for delay, if the matter fhould be found against him.] [But by a late order, 10l. were to be depofited in court for fecurity; and by a later order, 20 l. are to be depofited.] But now by order, reciting, that no bill of review, grounded upon new matter difcovered fince the decree, fhould be exhibited without special leave, and a depofit of 50%. And that in certain cafes where the former decree was not figned and inrolled, a petition had been presented to rehear the original caufe, and a fupplemental or new bill, in nature of a bill of review grounded upon new matter, had been brought to revive or vary the former decree without leave or depofit. It was ordered, that no fupplemental or new bill in nature of a bill of review, grounded upon new matter difcovered fince the making of the decree, fhall be exhibited without the special leave of the Court; and unless the party exhibiting the fame do firft depofit with the Regifter, fo much money as together with the depofit by the rules of the Court to be made, on obtaining a rehearing of the caufe, wherein fuch decree was pronounced, will make up the fum of 50%. A decree having been made at the Rolls in 1743, but not figned and inrolled, a bill in the nature of a bill of review was brought for matters exifting before, but not then discovered, but no petition to rehear or appeal, which Lord Hardwicke thought neceffary, and the caufe ftood over that one might be prefented. The office of the bill in nature of a bill of review, when the decree is not figned and inrolled, is to fupply the defects which occafioned the decree upon the former bill, which could not be done by bill of review,, unless the decree were figned and inrolled, and a man ought not to be put to fign and inrol a decree merely to entitle him to bring a bill of review to reverse it. [Said, tis ufual to fet down a caufe for rehearing, before the 20. be depofited; and it is perhaps well enough if the depofit be made fome convenient time before the day of hearing.] [A bill of review fhall not be admitted, nor any other new bill to change matter decreed, till the party hath obeyed the decree in all things, which ftand upon the Ld. Bac. Od. 3. ftrength of decree only, and wherein the Court can fet 97 him in as good a state again, as he was in cafe the [Toth. 42. former decree happen to be reversed.] Prac. H. Ch. 8.] [As where the decree is to yield poffeffion of land, Except in fome deliver writings, or pay money, he must first perform inftances. thefe, except the court fee caufe to difpenfe with the non-performance of any thing of this kind; as in case Ld Bac. Ord. 4o money be decreed, the Court will perhaps difpenfe with Px. Alm. 42. it, upon giving good fecurity; but fuch fparing or dif-1 Ch. Ca. 42.] penfing is to be warranted by public order made in court.] Toth. 42. [But if the decree requires any act to be done which Except in fome would extinguifh the party's right at common law, as inftances, conveying lands, releafing a debt, or acknowledging fatisfaction, cancelling records, or evidences, and the like; thofe parts of the decree are to be fpared, and will of course be stayed by order of court, till the bill of review be determined.] inttances. Plaintiff allowed to bring a bill of review without Except in fome paying the cofts decreed in the original caufe, upon making oath, that he was not worth 401. befides the matter in queftion. I Vern. 264. This order for difpenfing with the cofts ought to be 1 Vern. 292. fet forth in the bill of review. [But the plaintiff in review muft move for an order to ftay what is proper to be ftayed, if he expects to have it fo.] [Said, no witneffes which were or might have been Witnesses. examined on the former bill, fhall be examined to any matter on the bill of review.] [Toth, 173.] Papers coming to the hands of a party to a former Evidence. caufe after publication paffed, though not produced then, may be read upon a bill of review. [After a bill of review had been difmiffed, the party brought another, fuggefting further error, but was difmiffed; for intereft reipublicæ ut fit finis litium.] 2 Atk. 179. No new bill after bill of review. A bill having been taken pro confeffo, a bill of review was brought, and a demurrer allowed. A new bill of 1 Vern. 135. review was brought; demurrer, that a bill of review lies not after a bill of review. 441. [Though there has been error in a decree, yet if it After what time. has been refted under 16 or 20 years, the court in some cafes will not reverse it upon a bill of review.] [1Co.Rep.140.] Bill of review will not lie after an account had been 2 Atk. 534. directed and taken on a foreclosure bill, and the report confirmed fix years. |