newly discovered facts. Like that, it can only be filed by leave of the court, which is obtained in the same way, and upon the same grounds as leave to file such a bill of review; 10 and the proceedings upon the two kinds of bills are also substantially the same." But according to Lord Redesdale, "Bills in the nature of bills of review do not appear subject to any peculiar cause of demurrer, unless the decree sought to be reversed does not affect the interest of the person filing the bill." 12 Laches may be a ground for refusing leave to file a supplemental bill in the nature of a bill of review, unless such laches is extenuated by laches on the part of the defendant to it.13 Such a bill cannot be heard unless accompanied by a petition for a rehearing, when the rehearing of the original and the hearing of the supplemental cause will be set down together. Such a bill cannot be filed to set aside or to reopen an interlocutory order or decree.15

§ 354. Bills of review. A bill of review is a bill filed to reverse or modify a decree that has been signed and enrolled for error in law apparent upon the face of such decree, or on account of new facts discovered since publication was passed in the original cause, and which could not by the exercise of due diligence have been discovered or used before the decree was made. A bill of review can only be filed to impeach a final, not to impeach an interlocutory decree. For an interlocutory decree can always be modified or reversed by the court without any bill for that purpose. But the expression "final decree" is here used with the meaning given it when speaking of appeals. The errors of law for which a decree may be reversed or modified must be clearly apparent upon the record,

that is, "only such as arose upon the pleadings, proceedings, and decree, without reference to the evidence in the cause; "5 as, for example, the disregard of a statute, or want of jurisdiction, or the finding of a fact contrary to an allegation in a defendant's answer when no evidence was taken; not errors in drawing conclusions from evidence, nor errors in casting accounts,10 nor it seems in matters of abatement," nor in the exercise of discretion,12 nor matters of form,13-among which, however, the omission of a clause giving an infant defendant a day in which to show cause against a decree is not included, and on that ground a bill of review may be sustained. It has been held to be no sufficient ground for a bill of review that since the decree a State court has given to the Constitution of the State a construction different from that put upon it by the Federal court in its decree; 15 nor that since the decree the Supreme Court has changed its ruling upon a question of law or fact.16 In England, where the mandatory part of a decree was usually preceded by a statement of the facts upon which it was founded, only the decree itself could be examined for such errors; 17 but in the Federal courts where this custom does not exist, the whole record except the evidence may be thus corrected.18 Bills of review for errors apparent upon the record can only be filed within the time limited for

5 Bradley, J., in Buffington v. Harvey, 95 U. S. 99. See also Whiting v. Bank of U. S., 13 Pet. 6; Putnam v. Day, 22 Wall. 60; Thompson v. Maxwell, 95 U. S. 391.

"Story's Eq. Pl., § 405; Gregor v. Molesworth, 2 Ves. Sen. 109.

7 Ketchum v. Farmers' L. & T. Co., 4 McLean, 1; Miller v. Clark, 47 Fed. R. 850; s. C., 52 Fed. R. 900.

8 Clark v. Killian, 103 U. S. 766. 9 Whiting v. Bank of U. S., 13 Pet. 6; Dexter v. Arnold, 5 Mason, 303; Putnam v. Day, 22 Wall. 60; Buffington v. Harvey, 95 U. S. 99; Kimberley v. Arms, 40 Fed. R. 548; s. c., 136 U. S. 629; Jourolmon v. Ewing, 85 Fed. R. 103.

10 Massie v. Graham, 3 McLean, 41; Beames' Ord. 1; Story's Eq. PL., § 405.

11 Story's Eq. Pl., § 411; Hartwell v. Townsend, 6 Bro. Parl. R. 107; Slingsby v. Hale, 1 Ch. Cas. 122.

12 Buffington v. Harvey, 95 U. S. 99; Irwin v. Meyrose, 7 Fed. R. 533. 13 Story's Eq. Pl., § 411.

14 Story's Eq. Pl., § 407; Perry v. Phelips, 17 Ves. 173; Gregor v. Molesworth, 2 Ves. Sen. 109. See supra, $322.

15 King v. Dundee M. & Tr. I. Co., 28 Fed. R. 33; Hoffman v. Knox, 50 Fed. R. 484.

16 Tilghman v. Werk, 39 Fed. R.

680.

17 Story's Eq. Pl., § 407.

18 Whiting v. Bank of U. S., 13 Pet. 6; Buffington v. Harvey, 95 U. S. 99; Clark v. Killian, 103 U. S. 766.

19

an appeal.' The time within which the control of the Circuit Court over the case is suspended by an appeal subsequently dismissed, is not included in the computation of time; 20 but the period between the entry of a void order vacating the order sought to be reviewed and the vacation of such void order is included. Laches for a shorter period of time might be a ground for dismissing a bill of review. After a decree has been affirmed by the appellate court, it cannot be reviewed for any reason without leave of that court; 23 even if the affirmance was by a divided court. Leave to make such an application to the court below should be inserted in the mandate of the appellate court.25 Leave will rarely, if ever, be granted then to file a bill of review for errors in law.26 Leave of court is not needed to enable a party to file a bill of review for errors apparent upon the face of the record.27 A bill defective as a bill of review may be sustained as a cross-bill.28 It has been said that a bill of review is not in so far a contention of the original suit as to affect with notice of lis pendens a purchaser in good faith after a final decree and before the bill of review was filed or notice to the purchaser of an intention to

19 Thomas v. Harvie's Heirs, 10 Wheat. 146; Kennedy v. Georgia State Bank, 8 How. 586; Clark v. Killian, 103 U. S. 766; Story's Eq. Pl., § 410. See also Massie v. Graham, 3 McLean, 41; McDonald v. Whitney, 89 Fed. R. 466; Rector v. Fitzgerald (C. C. A.), 59 Fed. R. 808.

been held that a Circuit Court may, without leave of the Supreme Court, entertain a bill to enjoin the enforcement of a judgment against the complainant upon a mandate of the Supreme Court on the ground that the complainant was not in fact a party to such judgment nor bound

20 Ensminger v. Powers, 108 U. S. thereby. Brown v. Walker, 84 Fed. 292.

21 Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207.

22 Farmers' Loan & Trust Co. v. Green Bay & M. R. Co., 16 Fed. R. 100, 113; Duncan v. Atlantic M. & O. R. Co., 88 Fed. R. 840.

23 Southard v. Russell, 16 How. 547; Kingsbury v. Buckner, 134 U.S. 654; Kimberly v. Arms, 40 Fed. R. 548; S. C., 136 U. S. 629; Watson v. Stevens (C. C. A.), 53 Fed. R. 31; Franklin Savings Bank v. Taylor (C. C. A.), 53 Fed. R. 854; infra, § 355. But it has

R. 532.

24 Leslie v. Town of Urbana (C. C. A.), 56 Fed. R. 762.

25 Watson v. Stevens (C. C. A.), 53 Fed. R. 31, 35. See also Society of Shakers v. Watson (C. C. A.), 77 Fed. R. 512.

26 Southard v. Russell, 16 How. 547; Kingsburg v. Buckner, 134 U. S. 650, 671; Story's Eq. Pl., § 408.

27 Ross v. Prentiss, 4 McLean, 106. 28 Houghton v. West, 2 Bro. Parl. Rep. by Tomlins, 88; Story's Eq. Pl., § 401, n. 5.

file the same.29 A Federal court will not entertain a bill to review a decree of a State court.30

§ 355. Provisions peculiar to bills of review for matters of fact newly discovered.-Bills of review upon matters of fact newly discovered can only be filed by express leave of the court.1 Leave should be obtained by a petition praying for leave to file the bill, and supported by an affidavit showing that the new matter, which it is desired to prove, was not known to the petitioner, and could not have been discovered by him, with the exercise of due diligence, in time to prove it before the entry of the decree sought to be reviewed. It seems that the affidavit must be positive, and not merely upon information and belief. Previous knowledge of it by the petitioner's attorney or other agent while acting in that capacity, is equivalent to knowledge by the petitioner, and will be a reason for refusing to allow him to file the bill. If the newly discovered facts are proved by documents that were under the control of the petitioner, very good reasons for his not discovering and producing them before must be shown in order to entitle him to file a bill of review founded upon them. The affidavit should also state the nature of the new matter, and the evidence desired to be given in its support, in order that the court may judge of its relevancy and materiality. It is said that the matter must be not only new, but material, and such as, if unanswered in point of fact, would clearly entitle the plaintiff to a decree, or would raise a question of so much nicety and difficulty as to be a fit subject of judgment in the cause. The new matter may be concerning a point not in issue in the orig

29 Rector v. Fitzgerald, 59 Fed. R. 808, 811; Ludlow v. Kidd, 3 Ohio, 541. See also Lee County v. Rogers, 7 Wall. 181. Contra, Earle v. Couch, 3 Met. (Ky.) 450; Clarey v. Marshall's Heirs, 4 Dana (Ky.), 95, 96.

30 Graver v. Faurot, 64 Fed. R. 241. $355. Anon., 2 P. Wms. 283; Perry v. Phelips, 17 Ves. 173; Ross v. Prentiss, 4 McLean, 106; Story's Eq. Pl., § 412.

2 Wortley v. Birkhead, 2 Ves. Sen. 571; Young v. Keighly, 16 Ves. 348; Purcell v. Miner, 4 Wall. 519; Dexter v. Arnold, 5 Mason, 303; Massie v.

Graham, 3 McLean, 41; Ross v. Prentiss, 4 McLean, 106; Story's Eq. Pl., SS 412, 413.

Page v. Holmes B. A. Tel. Co., 2 Fed. R. 330.

4 Norris v. Le Neve, 3 Atk. 26; Greenlee v. McDowell, 4 Ired. Eq. (S. C.) 481; Story's Eq. Pl., §§ 413, 414. 5 Forum Romanum, 187.

6 U. S. v. Sampeyreac, Hempst. 118; Dexter v. Arnold, 5 Mason, 303; Massie v. Graham, 3 McLean, 41; Story's Eq. Pl., § 412.

7Ord v. Noel, 6 Madd. 127.

inal cause, provided that it be connected with the subject-matter of the bill. A bill of review will not lie on the ground of newly discovered evidence which is merely cumulative, or goes to impeach the character of witnesses.10 It has been held that a bill of review will not lie on the ground that a decree offered in evidence in the original suit and there held to be res adjudicata has since been set aside for want of jurisdiction, unless it is shown that the defect in the jurisdiction could not have been known or discovered by the exercise of reasonable diligence when the decree was offered in evidence." It has been said that the matter upon the discovery of which a bill of review is based, if previously known to the other party, must be of such a nature that he was not in conscience obliged to have discovered it to the court; for if it was known to him and such as in conscience he ought to have discovered, he obtained the decree by fraud, and it ought to be set aside by an original bill.12 Permission to file such a bill of review is always in the discretion of the court; 13 and lapse of time since the discovery of the new matter will always have great weight in inducing the court to look with disfavor upon an application for leave to file such a bill of review.1 It has been said that if the decree impeached has been affirmed by an appellate court, such a bill of review can only be filed by leave of that court; 15 but in the absence of special circumstances such leave will be granted by the court of review, as of course.16 A bill of review for newly discovered matter, if filed without leave, may upon motion be dismissed or taken off the file.1

§ 356. Provisions common to all bills of review.-"To entitle a person to bring a bill of review, it is necessary that he should have obeyed or performed the decree; as, if it be for

8 Partridge v. Osborne, 6 Russ. 195. 9 U. S. v. Sampeyreac, Hempst. 118. 10 Southard v. Russell, 16 How. 547. 11 Vetterlein v. Barker, 45 Fed. R. 74.

12 Manaton v. Molesworth, 1 Eden, 18, 25. But see U. S. v. Sampeyreac, Hempst. 118; s. c. as Sampeyreac v. U. S., 7 Pet. 222; Bennett v. Schooley, 77 Fed. R. 352; Municipal S. Co. v. Gamewell F. A. Tel. Co., 77 Fed. R. 452.

13 Beames' Orders, 1; Massie v. Graham, 3 McLean, 41; Story's Eq. PL, SS 404, 417.

14 Blandy v. Griffith, 6 Fish. Pat. Cas. 434; Thomas v. Harvie, 10 Wheat. 146, 151; Tilghman v. Werk, 39 Fed. R. 680; Story's Eq. Pl., § 419.

15 Southard v. Russell, 16 How. 547. 16 Seymour v. White County (C. C. A.), 92 Fed. R. 115; supra, § 355. 17 Carroll v. Parran, 1 Bland (Md.), 125, note.