cree.

And matter of abatement has been also treated as not capable of being shown for error to reverse a decree.'

§ 412. Secondly. A Bill of Review may be brought upon the discovery of new matter; such, for example, as the discovery of a release, or a receipt, which would change the merits of the claim, upon which the decree was founded.2 But leave of the Court must be obtained, before a Bill of Review can be filed on this ground; which leave to file it 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 in the original cause. The affidavit must also state the nature of the new matter, in order that the Court may exercise its judgment upon its relevancy and materiality.s

4

§ 413. Both of these considerations, to which the affidavit applies, are indispensable. In the first place, the new matter must be relevant and material, and such as, if known, might probably have produced a different determination. In other words, it must generally be new matter, to prove what was before in issue, and not to prove a title not before in issue; not to make a new case, but to establish the old one. In the next place, the new matter must have first come

5

1 Mitf. Eq. Pl. by Jeremy, 85; Cooper, Eq. Pl. 95; Hartwell v. Townsend, 6 Bro. Parl. R. 289; S. C. 2 Bro. Parl. R. 107, Tomlins's edit.; Slingsby v. Hale, 1 Ch. Cas. 122; S. C. 1 Eq. Abridg. 169.

2 Cooper, Eq. Pl. 91; Standish v. Radley, 2 Atk. 178; Wyatt, Pr. Reg. 98; Gilb. For. Rom. 186, 187.

3 Cooper, Eq. Pl. 92; Mitf. Eq. Pl. by Jeremy, 84; Gilb. For. Rom. 186-188; Wyatt, Pr. Reg. 95.

4 Mitf. Eq. Pl. by Jeremy, 84, 85; Wyatt, Pr. Reg. 95; Ord v. Noel, 6 Madd. R. 127; Blake v. Foster, 2 Molloy, R. 257; Wiser v. Blackley,

2 John. Ch. R. 488; Livingston v. Hubbs, 3 John. Ch. R. 124.

5 Dexter v. Arnold, 5 Mason, R. 312; Young v. Keighley, 16 Ves. 348, 354. But see Partridge v. Usborne, 5 Russ. R. 195.

to the knowledge of the party, after the time, when it could have been used in the cause at the original hearing. Lord Bacon's Ordinance says, in one part, it must be "after the decree." But that seems corrected by the subsequent words, "and could not possibly have been used at the time when the decree passed," which words point to the period of the publication of the testimony. And, accordingly, it is now the established exposition of the Ordinance, that the new matter shall not have been discovered until after publication has passed.1

§ 414. In the next place, another qualification of the rule, quite as important and instructive, is, that the matter must not only be new, but it must be such, as the party, by the use of reasonable diligence, could not have known; for, if there be any laches or negligence in this respect, that destroys the title to the relief.2

§ 415. It has been remarked by Lord Redesdale, that "It has been questioned, whether the discovery of

1 Dexter v. Arnold, 5 Mason, R. 312; Mitf. Eq. Pl. by Jeremy, 84, 85; Ord v. Noel, 6 Madd. R. 127; Wiser v. Blackley, 2 John. Ch. R. 488; Livingston v. Hubbs, 3 John. Ch. R. 124. Lord Hardwicke is reported to have said, that the words of Lord Bacon are dark. But that the construction has been, that the new matter must have come to the knowledge of the party after publication passed. Patterson v. Slaughter, Ambl. R. 293; Norris v. Le Neve, 3 Atk. 25, 34.

2 Dexter v. Arnold, 5 Mason, R. 312, 320, 321; Bingham v. Dawson, Jacob, R. 243; Livingston v. Hubbs, 3 John. Ch. R. 124; Pendleton v. Fay, 3 Paige, R. 204; Ord v. Noel, 6 Madd. R. 127. That doctrine was expounded and adhered to by Lord Eldon in Young v. Keighley, 16 Ves. 348, and was acted upon by Lord Manners in Barrington v. O'Brien, 2 B. & Beatt. 140, and Blake v. Foster, 2 B. & Beatt. 457, 461. It was fully recognized by Mr. Chancellor Kent, and received the sanction of his high authority in Wiser v. Blackley, 2 Johns. Ch. R. 488, and Barrow v. Rhinelander, 3 Johns. Ch. R. 120. And in the very recent case of Bingham v. Dawson, 1 Jac. & Walk. 243, Lord Eldon infused into it additional vigor. See also Hodson v. Ball, 11 Sim. R. 456, 463; S. C. 1 Phill. Ch. R. 182; Ante, § 338.

new matter, not in issue in the cause, in which a decree has been made, could be the ground of a Bill of Review; and whether the new matter, on which Bills of Review have been founded, has not always been new matter to be used as evidence to prove matter in issue, in some manner, in the original Bill. A case, indeed, can rarely happen, in which new matter discovered would not be, in some degree, evidence of matter in issue in the original cause, if the pleadings were properly framed. Thus, if after a decree, founded on a revocable deed, a deed of revocation and new limitations were discovered; as it would be a necessary allegation of title under the revocable deed, that it had not been revoked, the question of revocation would have been in issue in the original cause, if the pleadings had been properly framed. So, if, after a decree, founded on a supposed title of a person, claiming as heir, a settlement or will were discovered, which destroyed or qualified that title, it would be a necessary allegation of the title of the person claiming as heir, that the ancestor died seised in fee simple, and intesBut if a case were to arise, in which the new matter discovered could not be evidence of any matter in issue in the original cause; and yet clearly demonstrated error in the decree; it should seem, that it might be used, as ground for a Bill of Review, if relief could not otherwise be obtained. It is scarcely possible, however, that such a case should arise, which might not be deemed in some degree a case of fraud, and the decree impeachable on that ground. In the case, where the doubt before mentioned appears to have been stated, the new matter, discovered and alleged as ground for a Bill of Review, was a purchase for valuable consideration, without notice of the plaintiff's title. This could only be used as a defence.

tate.

And it seems to have been thought, that, although it might have been proper, under the circumstances, if the new matter had been discovered before the decree, to have allowed the defendant to amend his answer, and put it in issue; yet it could not be made the subject of a Bill of Review; because it created no title paramount to the title of the plaintiff, but merely a ground to induce a Court of Equity not to interfere.1 And where a settlement had been made on a marriage in pursuance of articles, and the settlement following the words of the articles had made the husband tenant for life, with remainder to the heirs male of his body; and the husband, claiming as tenant in tail under the settlement, had levied a fine and devised to trustees, principally for the benefit of his son; and the trustees had obtained a decree to carry the trusts of the will into execution against the son; the son afterwards, on discovery of the articles, brought a Bill to have the settlement rectified according to the articles, and a decree was made accordingly. In this case, the new matter does not appear to have been evidence of matter in issue in the first cause, but created a title adverse to that, on which the first decree was made." 3

2

1 Young v. Keighly, 16 Ves. 348, 354.

2 Roberts v. Kingsly, 1 Ves. 238.

3 Mitf. Eq. Pl. by Jeremy, 85-87, and cases there cited; Gilb. For. Rom. 186. This subject, which seems involved in some difficulty, was a good deal investigated in the case of Dexter v. Arnold, 5 Mason, R. 313, where the Court said; "Upon another point there is not, perhaps, a uniformity of opinion in the authorities. I allude to the distinction taken in an anonymous case in 2 Freem. Rep. 31, where the Chancellor said, that' where a matter of fact was particularly in issue before the former hearing, though you have new proof of that matter, upon that you shall never have a Bill of Review. But where a new fact is alleged, that was not at the former hearing, there it may be a ground for a Bill of Review.' Now, assuming that under certain circumstances, new matter, not in evidence, that is, not in issue in the original cause, but clearly demonstrating error in the decree, may support a Bill of Review, if it is the 55

EQ. PL.

§ 416. The doctrine here asserted by Lord Redesdale seems now to be fully confirmed; and it has been

only mode of obtaining relief; still it must be admitted, that the general rule is, that the new matter must be such as is relevant to the original case in issue. Lord Hardwicke, in Norris v. Le Neve, 3 Atk. 33, 35, is reported to have admitted, that a Bill of Review might be founded upon new matter, not at all in issue in the former cause, which seems contrary to his opinion in Patterson v. Slaughter, Ambler, 293, or upon matter, which was in issue, but discovered since the hearing. But the very point in 2 Freeman, 31, (if I rightly understand it,) is, that a newly discovered fact is ground for a Bill; but not newly discovered evidence in proof of any fact already in issue. This seems to me at variance with Lord Bacon's Ordinance; for it is there said, that there may be a review upon 'new matter, which hath arisen in time after the decree,' and also 'upon new proof, that has come to light after the decree made, and could not possibly have been used at the time, when the decree passed.' It is also contrary to what Lord Hardwicke held in the cases cited from 3 Atk. 33, and Ambler, 293. Lord Eldon, in Young v. Keighly, 16 Ves. 348, 350, said; 'The ground [of a Bill of Review] is error, apparent on the face of the decree, or new evidence of a fact materially pressing upon the decree, and discovered at least after publication in the cause. If the fact had been known before publication, though some contradiction appears in the cases, there is no authority, that new evidence would not be sufficient ground.' That was also the opinion of Lord Manners, in Blake v. Foster, 2 B. & Beatt. 457. Mr. Chancellor Kent, in Livingston v. Hubbs, 3 Johns. Ch. R. 124, adopted the like conclusion; and he seemed to think, that such new evidence must not be a mere accumulation of witnesses to the same fact; but some stringent written evidence or newly discovered papers. Gilbert, in his Forum Romanum, ch. 10, p. 186, leans to the same limitation; for he says, that in Bills of Review, 'they can examine to nothing, that was in the original cause, unless it be matter happening subsequent, which was not before in issue, or upon matter of record or writing not known before; for if the Court should give them leave to enter into proofs upon the same points, that were in issue, that would be under the same mischief as the examination of witnesses after publication, and an inlet into manifest perjury.' There is much good sense in such a distinction, operating upon the discretion of the Court in refusing a Bill of Review, and I should be glad to know, that it has always been adhered to. It is certain, that cumulative written evidence has been admitted; and even written evidence to contradict the testimony of a witness. That was the case of Attorney-General v. Turner, Ambler, 587. Willan v. Willan, 16 Ves. 72, 88, supposes, that new testimony of witnesses may be admissible. If it be admissible, (upon which I am not called to decide,) it ought to be received with extreme caution, and only when it is of such a nature as ought to be decisive proof. There is so much of just