this whole class of cases depends on special circumstances of a very peculiar nature, it seems impracticable to lay down any rules, as to demurrers to them.

$ 641. Eighthly; Demurrers to Bills to carry decrees into execution. Bills of this sort are open to few peculiar causes of demurrer. Where, upon the face of a Bill to carry a decree into execution, the plaintiff appears to have no right to the benefit of the decree, the defendant may avail himself of the objection by demurrer.' Where a decree is clearly erroneous, it is not (as has been already stated) a matter of course for the Court to enforce it. But, on the contrary, the Court will, in many cases, refuse to enforce it, if it would be prejudicial to the rights and interests of third persons, who ought to have been made, but were not made, parties to the original decree. For the party, who comes into a Court of Equity to have the benefit of a former decree, is bound to show, that, upon its face, it was a right decree; and, if it be palpably erroneous, it ought not to be carried into execution.

3

the relief granted by the Court, as having been somewhat affected by the turbulent and extraordinary character of the times. Mitf. Eq. Pl. by Jeremy, 94, note (i).

1 Mitf. Eq. Pl. by Jeremy, 206 ; Cooper, Eq. Pl. 218. 2 Ante, § 430. 3 Ante, 430 ; Mitf. Eq. Pl. by Jeremy, 95, 96 ; Cooper, Eq. Pl. 99; Hamilton v. Houghton, 2 Bligh, R. 169. The case of Hamilton 0. Houghton, 2 Bligh, R. 169, affords a strong illustration of the principles stated. There, a Bill was originally filed by one creditor to obtain payment out of a trust fund, created under an assignment for the payment of debts generally, without making the other creditors parties; and a decree was had accordingly. On a Bill to enforce this decree, brought by persons claiming under the same creditor, the House of Lords held the decree palpably erroneous, among other things, for not decreeing a general execution of the trust in favor of all the creditors, and making them all parties to the Bill, or bringing them all before the Court in the proceedings before the Master; and they refused to carry it into effect, notwithstanding the lapse of forty years after the decree. It was also held,

$ 642. We have thus gone over the general grounds as well as the peculiar grounds of demurrer, applicable to the different kinds of Bills, original, and not original. We may conclude this subject with the suggestion, which has, indeed, already occurred, incidentally, under some of the preceding heads, but seems proper to be here repeated in a more general form, that, in addition to the several particular causes of demurrer, applicable to particular kinds of Bills, any irregularity in the frame of a Bill, of any sort, may be taken advantage of by demurrer. A few illustrations of this may, perhaps, be appropriate in this place, although some of them have already been stated.?

$ 643. Thus, for example, if a Bill is brought contrary to the usual course of the Court, a demurrer will bold. As, where, after a decree, directing incumbrances to be paid according to their priority, the plaintiff, a creditor, obtained an assignment of an old mortgage, and filed a Bill to have the advantage it would give him by way of priority over the demands of some of the defendants, a demurrer was allowed. This was a Bill to vary a decree; and yet it was neither a Bill of Review, nor a Bill in the nature of a Bill of Review ; which are the only kinds of Bills, which can be brought to affect or alter a decree, unless the decree has been obtained by fraud.

that, upon a Bill to carry into effect a decree, the Court might examine, impeach, or vary the decree. The House of Lords, however, in this case, gave the plaintiff liberty to amend his Bill, and to introduce the other parties in interest, and to shape the Bill for the proper purposes.

1 Mitf. Eq. Pl. by Jeremy, 206, 207.
2 Ante, $ 528, note.
3 Ibid.

4 Mitf. Eq. Pl. by Jeremy, 206, 207 ; Ante, 9 638 ; Wortley v. Birkhead, 3 Atk, 809, 811; Fletcher v. Tollet, 5 Ves. 3. 5 Ibid. EQ. PL.

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$ 644. So, where a Bill was preferred to establish the plaintiff's right of common, and to set aside several former decrees, the defendant demurred to the whole Bill, and the demurrer was allowed; for if there were any errors in the former decrees, they ought to have been brought before the Court by a Bill of Review, and not by this method. So, where a decree was passed, settling the rights of the parties upon all the points raised in the cause; and, afterwards, an original Bill was brought to supply some omissions in the original decree; it was deemed a valid objection, that it was contrary to the practice of the Court to allow such an original Bill upon the same matter, as was put in issue in the original cause, even supposing, that a direction, which ought to have been given at that time, was omitted.?

§ 645. So, where a Bill was brought, seeking a decree, inconsistent with a former decree, which had been rendered on the same matters between the parties; it was held, that the former decree could not be thus impeached collaterally, but only upon a Bill of Review, or a Bill to set it aside for fraud. And if the objection appeared on the face of the new Bill, it would be demurrable.

§ 646. Upon a similar ground, (as has been already stated,) if a supplemental Bill is brought against a person, not a party to the original Bill, praying, that he may answer the original Bill; and no reason is suggested, why he could not be made a party to the original Bill by amendment ; he may demur. If an

1 Granville o. Ramsden, Bunb. R. 56; Darlington v. Pultney, 3 Ves. 384, 386.

2 Darlington v. Pultney, 3 Ves. 384, 386.
3 Ogilvie v. Herne, 13 Ves. 563.
4 Ante, $ 614.

irregularity arises in any alteration of a Bill by way of amendment, it may also be taken advantage of by demurrer. As, if a plaintiff amends his Bill, and states a matter, arisen subsequent to the filing of the Bill, which consequently ought to be the subject of a supplemental Bill, or of a Bill of Revivor.

But if a matter, arisen subsequent to the filing of the Bill, and properly the subject of a supplemental Bill, is stated by amendment, and the defendant answers the amended Bill, it is too late to object to the irregularity at the hearing. For, as the practice of introducing, by supplemental Bill, matter arisen subsequent to the institution of a suit, has been established merely to preserve order in the pleadings, the reason, on which it is founded, ceases, when all the proceedings to obtain the judgment of the Court have been had without any inconvenience arising from the irregularity.'

1 Mitf. Eq. Pl. by Jeremy, 207, and cases there cited ; Ante, $ 528, note.