rehearing in England was formerly allowed almost as of course, upon the filing of a petition signed by two counsel, of whom one at least must have been concerned in the original hearing; the rule having been stated by Lord Hardwicke, that "such credit is given by the court to their opinion that the cause ought to be reheard, that it will in general, order the cause to be set down" for that purpose, as a matter of course.5 This rule, however, has not been adopted in the courts of the United States, where a rehearing is discretionary with the judge to whom the application is made.6 Unless the judge acts of his own motion, a rehearing will be granted only for errors of law apparent upon the record and arising upon questions which were not argued at the original hearing, or upon newly discovered evidence of such a character that it would have authorized a new trial in an action at law. "A rehearing should not be granted for newly discovered evidence where the evidence could have been obtained by reasonable diligence on the first hearing, nor when it is merely cumulative to that previously received, nor when, if presented, it would not have changed the result." 8 "A new hearing should not be had simply to allow a rehash of old arguments."9 "If rehearings are to be had, until the counsel on both sides are entirely satisfied, I fear, that suits would become immortal, and the decision be postponed indefinitely." 10 A rehearing can only take place for the purpose of altering a decree upon grounds which existed at the time when the decree was pronounced, and will not be allowed to remedy a grievance consequent upon a decree resulting entirely from circumstances that have occurred subsequent to its entry. The rules provide that "every petition for a rehearing shall contain the special matter or 5 Cunyngham v. Cunyngham, Ambler, 89. See Attorney General v. Brooke, 18 Ves. 319, 325; East India Co. v. Boddam, 13 Ves. 421. 6 Mr. Justice Field in Giant Powder Co. v. Califordia Vigorit Powder Co., 5 Fed. R. 97. 7 Daniel v. Mitchell, 1 Story, 198; Jenkins v. Eldredge, 3 Story, 299; Emerson v. Davies, 1 W. & M. 21; Tufts v. Tufts, 3 W. & M. 426; Giant Powder Co. v. California Vigorit Powder Co., 5 Fed. R. 197. 8 Giant Powder Co. v. California Vigorit Powder Co., 5 Fed. R. 197, 201; Jenkins v. Eldredge, 3 Story, 299; Tufts v. Tufts, 3 W. & M. 426; Hicks v. Otto, 22 Blatchf. 122; Page v. Holmes Burglar Alarm Telegraph Co., 2 Fed. R. 330; The Collins Co. v. Coes, 8 Fed. R. 517; Witters v. Sowles, 31 Fed. R. 5; Pfanschmidt v. Kelly Mercantile Co., 32 Fed. R. 667, and cases cited in the opinions in these cases. But see Webster Loom Co. v. Higgins, 43 Fed. R. 673. 9 Mr. Justice Field in Giant Powder Co. v. California Vigorit Powder Co., 5 Fed. R. 197, 201. 10 Mr. Justice Story in Jenkins v. Eldredge, 3 Story, 299, 305. 11 Bowyer v. Bright, 13 Price, 316; Hurlburd v. Freelove, 3 Wis. 537. cause on which such rehearing is applied for, shall be signed by counsel, and the facts therein stated, if not apparent on the record, shall be verified by the oath of the party or by some other person. 1." 12 The allegations must be full, precise, and certain. It seems that they will be insufficient if sworn to merely upon information and belief.13 It has been held that when evidence of new facts not already in issue is to be given, the petition should be accompanied by a supplemental bill in the nature of a bill of review, pleading these facts; in which case, if the petition be granted, the hearing upon that bill will take place at the same time as the rehearing of the original suit.14 The usual proceedings to obtain a rehearing are for the party desiring it to file his petition in the clerk's office, and then to procure an order directing his opponent to show cause why his prayer should not be granted.15 The adverse party may then answer, controverting or setting up new matter in avoidance of allegations in the petition; or probably may show cause against granting the rehearing on the return day of the order by an affidavit.16 If there be any irregularity in the petition, it may be taken off the file at the respondent's motion. Upon the return day of the order to show cause, if no adjournment be had, the matter is argued before the judge, by whose direction the decree or order complained of was made, unless he be absent, when the papers and the briefs of counsel should be filed with the clerk, who will mail them to him.18 The petition will not be granted without notice to the adverse parties, and an opportunity for their presence afforded them.19 A rule of the Circuit Court for the Southern District of New York provides that when a "motion for a rehearing is made during the term at which a decree has been rendered, the enrolling or recording of such decree shall be suspended until the final disposition of such motion by the court." 20 Upon a rehearing the cause or matter is proceeded in as if it were heard for the first time. All depositions taken before 12 Rule 88. 16 Giant Powder Co. v. California Vig 13 Page v. Holmes Burglar Alarm Tel- orit Powder Co., 5 Fed. R. 197. egraph Co., 2 Fed. R. 330. 14 Baker v. Whiting, 1 Story, 218; Perry v. Phelips, 17 Ves. 173, 178; Head v. Godlee, Johns. 536, 579; Jopp v. Wood, 2 De G. J. & S. 323. 15 Giant Powder Co. v. California Vigorit Powder Co., 5 Fed. R. 197. 17 Wood v. Griffith, 1 Meriv. 35. 18 Giant Powder Co. v. California Vigorit Powder Co., 5 Fed. R. 195. 19 Giant Powder Co. v. California Vig. orit Powder Co., 5 Fed. R. 197. 20 U. S. C. C., S. D. N. Y., Rule 114. the original hearing, though not then used, may be read,21 and the plaintiff may withdraw from evidence any portion of the answer read before.22 No new evidence can be used, unless a supplemental bill has been filed; 23 but exhibits not previously used may be produced; 24 and if a witness has since the former hearing been convicted of perjury,25 or admitted receiving a bribe to influence his testimony,26 that may be proved to the court. After one rehearing, a petition for another can only be filed by special leave of the court, and may be taken off the file if presented without such leave.27 It has been held that an order granting a rehearing after the time prescribed by the rules has expired is void, not merely voidable; and that a party does not by taking a subsequent step in the cause, waive his right to move to vacate the same 28 The grant or refusal, absolute or conditional, of an application for a rehearing, which has been made in due time, rests in the discretion of the court where the cause is first heard, and is not a subject of appeal.29 § 353. Supplemental Bills in the nature of Bills of Review. A supplemental bill in the nature of a bill of review is a bill that brings to the attention of the court new matter, which has arisen or been discovered since, and could not by the exercise of due diligence have been discovered before, the time for taking testimony in a cause expired, and which the party filing the bill alleges as a reason why a decree made and passed therein, but not signed and enrolled, should be reversed or modified.1 Such a bill cannot be filed after a decree has been signed and enrolled.2 The proper remedy in a similar case then is a bill of review. A supplemental bill in the nature of a bill of review cannot be used to obtain a reversal or modification of a decree for errors in law apparent upon its face. That, before enrolment, can only be done by means of a petition for a rehearing.5 Matter of revivor and supplement may 21 Cunyngham v. Cunyngham, Ambler, 89, 90. 22 Allfrey v. Allfrey, 1 Macn. & G. 87; Ogle v. Morgan, 1 De G. M. & G. 359. 23 Jenkins v. Eldredge, 3 Story, 299. 24 Herring v. Clobery, Cr. & Ph. 251. 25 Needham v. Smith, 2 Vern. 463. 26 Needham v. Smith, 2 Vern. 463. 27 Moss v. Baldock, 1 Phill. 118. 28 Glenn v. Lucas, 43 Fed. R. 550. 29 Roemer v. Bernheim, 132 U. S. 103, 106; Buffington v. Harvey, 95 U. S. 99, 100; Steines v. Franklin County, 14 Wall. 15, 22; Railway Company . Heck, 102 U. S. 120; Kennon v. Gilmer, 131 U. S. 22, 24; Boesch v. Gräff, 133 U. S. 697, 699. § 353. 1 Perry v. Phelips, 17 Ves. 173; Mitford's Pl. ch. 1, § 2; Moore v. Moore, 2 Ves. Sen. 596; Story's Eq. Pl. §§ 422, 423. 2 Beames' Orders, 1. 8 See §§ 354-356. 4 Perry v. Phelips, 17 Ves. 173. be incorporated in such a supplemental bill. An English chancery order made on the 17th of October, 1841, and which should probably be followed here, the clerk taking the place of the registrar and five dollars being reckoned as a pound sterling, provides: "That no supplemental bill, or bill in the nature of a bill of review, grounded upon new matter discovered, or pretended to be discovered, since the pronouncing of any decree of this Court, in order to the reversing or varying of such decree, shall be exhibited without the special leave of the Court first obtained for that purpose, and unless the party exhibiting the same do first deposit with the registrar of this Court so much money as together with the deposit by the rules of this Court required to be made on obtaining a rehearing of the cause or causes wherein such decree was pronounced will make up the sum of 501., as a pledge to answer such costs and damages as shall be awarded to the adverse party, in case the court shall think fit to award any at the hearing of the cause on such supplemental or new bill." A supplemental bill in the nature of a bill of review should state the facts which it is desired to prove, and, if they had then occurred, the reason why they were not discovered and given in evidence before publication, and it seems should state positively that the decree has not been enrolled, and not in the alternative, praying one sort of relief as upon a bill of review, if the decree has been enrolled, and if not enrolled, then to have the benefit of it as upon a supplemental bill in the nature of a bill of review.8 Such a bill should conclude with a prayer that the cause may be reheard. It should be signed by counsel, and in other respects conform to the requirements of a bill of review upon newly discovered facts.9 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 that 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 6 Perry v. Phelips, 17 Ves. 176-178. 7 Order of 17th October, 1741; Beames' Orders, 368. 8 Story's Eq. Pl. § 425. See the language of Lord Eldon in Perry v. Phelips, 17 Ves. 173-178. 9 Story's Eq. Pl. §§ 422, 425. See infra, § 355. 10 Story's Eq. Pl. § 422. 11 Story's Eq. Pl. §§ 422-425. 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.18 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.14 3 § 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.1 A bill of review can only be filed to impeach a final, not to impeach an interlocutory decree.2 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; 995 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,11 nor in the 18 Story's Eq. Pl. § 423; Sheffield Canal Co. v. Sheffield & R. Ry. Co., 1 Phillips, 484. 14 Moore v. Moore, 2 Ves. Sen. 596, 598; Perry v. Phelips, 17 Ves. 173. § 354. 1 Mitford's Pl. ch. 1, § 3, pt. 3; Story's Eq. Pl. §§ 403-420; Irwin v. Meyrose, 7 Fed. R. 533; Nickle v. Stuart, 111 U. S. 776. v. Bank of United States, 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. 8 Clark v. Killian, 103 U. S. 766. 9 Whiting v. Bank of United States, 2 Jenkins v. Eldredge, 3 Story, 299; 13 Pet. 6; Dexter v. Arnold, 5 Mason, Story's Eq. Pl. § 408 a. 303; Putnam v. Day, 22 Wall. 60; 3 Story's Eq. Pl. § 408 a. See supra, Buffington v. Harvey, 95 U. S. 99; Kimberley v. Arms, 40 Fed. R. 548; s. c. 136 U. S. 629. § 203. 4 Story's Eq. Pl. § 408 a; Whiting v. Bank of United States, 13 Pet. 6, 15; Ray v. Law, 3 Cranch, 179; Jenkins v. Eldredge, 3 Story, 299. 5 Mr. Justice Bradley in Buffington v. Harvey, 95 U. S. 99. See also Whiting 10 Massie v. Graham, 8 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. |