native, as a bill of review, or, if the court shall think it not good as such, then as a bill of revivor and supplement.21 It is improper for a bill of review on account of errors of law to contain a statement of the evidence in the original cause.22 A bill of review which seeks relief because the original decree was erroneous for errors of law appearing on its face, and because of the discovery of new facts, and because of fraud, has been held multifarious.23 A bill of review should be signed by counsel, and otherwise conform in general to the requirements of an original bill.4 If the court had jurisdiction of the original suit, it can take jurisdiction of the bill of review, even though it would have none were the latter regarded as the beginning of a new suit.25 It has been said that a Federal court cannot take cognizance of a bill of review to a decree of a State court.26 The service and the appearance of a defendant to a bill of review is made and enforced in the same manner as to an original bill. But if the defendant be beyond the jurisdiction of the court, service of a subpoena upon his solicitor in the former suit may be allowed by the court.27 The usual defense to a bill of review for errors apparent upon the face of the decree is by demurrer; 28 to which is usually joined a plea setting forth in full the original decree, although there seems to be no necessity for this practice.29 If the demurrer is overruled, the decree is reversed or modified and the errors allowed, and no further answer or hearing is necessary.30 If the demurrer is sustained, that has all the effect of confirming the decree, and puts an end to the suit.31 The rule is in such a case only to vary the decree upon such errors as are complained of, except as to consequential directions, which will be altered to conform to the changes made.32 If a bill of review for apparent error contain a statement of the evidence taken in the original cause, that may be stricken out of the bill as surplusage on motion; 83 or it may be a ground of demurrer, if specially assigned; 34 but the bill, if other 21 Perry v. Phelips, 17 Ves. 173. 22 Buffington v. Harvey, 95 U. S. 99. 23 Kimberly v. Arms, 40 Fed. R. 548, 559; s. c. 136 U. S. 629. 24 Mitford's Pl. ch. 1, § 2, pt. 3. 33 28 Mitford's Pl. ch. 2, § 2, pt. 1, 5. 26 Oglesby v. Attrill, 12 Fed. R. 227. 598. See § 21. 33 Mr. Justice Bradley in Buffington v. 26 Mr. Justice Bradley in Barrow v. Harvey, 95 U. S. 99. Hunton, 99 U. S. 80, 83. 27 See supra, § 96. 34 Buffington v. Harvey, 95 U. S. 99. wise good, cannot be dismissed for that reason upon a general demurrer,35 although such evidence or an allegation of an error of fact cannot on a general demurrer be used in support of the bill.36 According to Lord Redesdale: "When any matter beyond the decree is to be offered against opening the enrolment, as length of time, that matter must be pleaded; otherwise the plaintiff will not have the benefit of exceptions, as infancy, coverture, or the like." 87"A bill of review upon the discovery of new matter and a supplemental bill of the same nature being exhibited only by leave of the court, the ground of the bill is generally well considered before it is brought; and therefore in point of substance it can rarely be liable to a demurrer. But if brought upon new matter, and the defendant should think that matter not relevant, probably he might take advantage of it by way of demurrer, although the relevancy ought to be considered at the time leave is given to bring the bill." 38 If a demurrer to such a bill of review or supplemental bill be overruled, it does not dispose of the cause; and the defendant must answer, because fact is at issue.39 If the demurrer is allowed, however, the suit is at an end.40 The defendant may, it seems, traverse, and attempt to disprove, the allegations concerning the discovery of the new facts.41 Upon the argument of the demurrer, nothing can be read except the bill of review and the decree,42 and, in the Federal courts, the record 43 in the original suit; but, after the demurrer has been overruled, the plaintiff is at liberty to read any evidence that was submitted therein, as at a rehearing, the cause being then equally open.44 Filing a bill of review does not prevent the execution of the decree impeached.45 The court has power, when sustaining such a bill, to set aside a conveyance made in pursuance of the decree.40 46 § 357. Bills in the Nature of Bills of Review. As has been said above,1 only parties to the decree impeached or their privies 85 Buffington v. Harvey, 95 U. S. 99. 36 Shelton v. Van Kleeck, 106 U. S. 532. 87 Mitford's Pl. ch. 2, § 2, pt. 2. 88 Mitford's Pl. ch. 2, § 2, pt. 2. 89 Cook v. Bamfield, 3 Swanst. 607. 40 Mitford's Pl. ch. 2, § 2, pt. 2. 41 Dexter v. Arnold, 5 Mason, 303; U. S. v. Sampey reac, Hempst. 118; Story's Eq. Pl. § 420, n. 7. 42 Catterall v. Purchase, 1 Atk. 290. 48 Whiting v. Bank of the United States, 13 Pet. 13; Story's Eq. Pl. § 407. 44 Catterall v. Purchase, 1 Atk. 290. 45 Williams v. Mellish, 1 Vern. 117, n. 46 Bank of the United States v. Ritchie, 8 Pet. 128. § 357. 1 See § 356. by operation of law, as heirs, executors, or administrators, are entitled to file a bill of review; but other persons in interest and in priority of estate, who are aggrieved by the decree, can have the same relief by means of a bill in the nature of a bill of review. Such are assignees, devisees, and remaindermen of the original unsuccessful parties. Lord Redesdale also speaks as follows concerning such a bill: "If a decree is made against a person who has no interest at all in the matter in dispute, or had not such an interest as was sufficient to render the decree against him binding upon some person claiming the same or a similar interest, relief may be obtained against error in the decree by a bill in the nature of a bill of review. Thus, if a decree is made against a tenant for life only, a remainderman in tail, or in fee, cannot defeat the proceedings against the tenant for life, but by a bill, showing the error in the decree, the incompetency in the tenant for life to sustain the suit, and the accruer of his own interest, and thereupon praying that the proceedings in the original cause may be reviewed, and for that purpose that the other party may appear to and answer this new bill, and that the rights of the parties may be properly ascertained. A bill of this nature, as it does not seek to alter a decree made against the plaintiff himself, or against any person under whom he claims, may be filed without the leave of the court."4 Otherwise, the frame of and proceedings under bills in the nature of bills of review are substantially the same as those relating to bills of review. "If a 358. Bills to impeach Decrees on Account of Fraud. decree has been obtained by fraud, it may be impeached by original bill without the leave of the court; the fraud used in obtaining the decree being the principal point in issue, and necessary to be established by proof before the propriety of the decree can be investigated. And where a decree has been so obtained the court will restore the parties to their former situation, whatever their rights may be." 1 Such a bill has been called an original bill in the nature of a bill of review. There are dicta stating 2 Story's Eq. Pl. § 409. 3 Story's Eq. Pl. § 409; Whiting v. Bank of the United States, 13 Pet. 6; Singleton v. Singleton, 8 B. Monr. (Ky.) 340; Turner v. Berry, 38 Ill. 541. 4 Mitford's Pl. ch. 1, § 2, pt. 3. § 358. See also Story's Eq. Pl. § 426'; Richmond v. Tayleur, 1 P. Wms. 734; Barnesle v. Powell, 1 Ves. Sen. 120; Evans v. Bacon, 90 Mass. 213; Pacific R. R. of Mo. v. Mo. Pacific Ry. Co., 111 United States, 505. 2 Mussel v. Morgan, 3 Bro. Ch. R. 74, 1 Mitford's Pl. ch. 1, § 2, pt. 3. 79; Story's Eq. Pl. § 426. that a decree obtained by fraud may be set aside upon petition; 3 but it was finally settled that after enrolment a decree could only be impeached for this account by an original bill. This is the only manner in which a decree entered by consent can be impeached.5 Decrees entered by collusion, or surprise, may also be rectified in this manner. Certain other cases, although if logical arrangement solely were considered they should be considered under other heads, yet as they are usually spoken of in this connection by the books, may be here referred to. Lord Redesdale uses the following language, which has been copied by all subsequent text-writers: "Besides cases of direct fraud in obtaining a decree, it seems to have been considered, that where a decree has been made against a trustee, the cestui que trust not being before the court and the trust not discovered; or against a person who has made some conveyance or incumbrance not discovered; or when a decree has been made in favor of or against an heir, when the ancestor has in fact disposed by will of the subject matter of the suit; the concealment of the trust or subsequent conveyance or incumbrance, or will, in these several cases, ought to be treated as a fraud. It has been also said that where an improper decree has been made against an infant, without actual fraud, it ought to be impeached by original bill." 8 A bill to set aside a decree for fraud must state the decree, and the proceedings which led to it, with the circumstances of fraud on which it is impeached. All the parties to the original suit or their representatives should be joined as parties to it.10 A bill to set aside a judgment or decree of a State Court on account of fraud may be filed in a Federal court," and if originally filed in a State court, may be removed to a Federal court, when the requisite difference of citizenship exists.12 A bill to set aside the decree of 3 Sheldon v. Fortescue Aland, 3 P. Wms. 104, 111; Story's Eq. Pl. § 426. 4 Mussel v. Morgan, 3 Bro. Ch. R. 74, 79; Bennett v. Hamill, 2 Sch. & Lefr. 566, 576; Story's Eq. Pl. § 426. 5 Buck v. Fawcett, 3 P. Wms. 242; Davenport v. Stafford, 8 Beav. 503; Gilbert v. Endean, L. R. 9 Ch. D. 259; Seton on Decrees (4th ed.), 1536. 6 Buck v. Fawcett, 3 P. Wms. 242; Story's Eq. Pl. §§ 426-428. 7 Stevens v. Guppy, 1 Turn & Rus. 178. 8 Mitford's Pl. ch. 1, § 2, pt. 3. 13 a Federal court on account of fraud may be filed in a Federal court irrespective of the citizenship of the parties. 18 A bill defective as a bill to set aside a decree for fraud might perhaps be sustained as a bill of review for matters apparent upon the record, but not unless filed within the time allowed for an appeal.14 Upon an application for leave to file a bill of review for matters of fact newly discovered which were insufficient to support the bill, the court refused to separate from such allegations other allegations of fraud in obtaining the original decree, and to permit the bill to be filed as a bill to set aside the decree for fraud.15 A bill to set aside a decree for fraud must show a valid and meritorious defense to the original decree.16 $359. Bills to Suspend or Avoid the Operation of Decrees and Judgments. — Lord Redesdale speaks as follows concerning bills to suspend the operation of decrees: "The operation of a decree signed and enrolled has been suspended on special circumstances, or avoided by matter subsequent to the decree, upon a new bill for that purpose. Thus during the troubles after the death of Charles the First, upon a decree for a foreclosure in case of non-payment of principal, interest, and costs due on a mortgage, the mortgagor at the time of payment being forced to leave the kingdom to avoid the consequences of his engagements with the royal party, and having requested the mortgagee to sell the estate to the best advantage and pay himself, which the mortgagee appeared to have acquiesced in; the court upon a new bill enlarged the time for performance of the decree, upon the ground of the inevitable necessity which prevented the mortgagor from complying with the strict terms of it, and also made a new decree on the ground of the matter subsequent to the former decree." 1 "The embarrassments occasioned by the civil war in the reign of Charles I., and the state of affairs after his death, before the restoration of Charles II., occasioned many extraordinary applications to the court of Chancery for relief, and perhaps induced the court to go far in extending relief; but there were many 13 Pacific R. R. of Mo. v. Mo. Pacific Ry. Co., 111 United States 585; supra, $ 21. 14 Dunlevy v. Dunlevy, 38 Fed. R. 462. See supra, § 354. 16 Kimberly v. Arms, 40 Fed. R. 548; s. c. 136 U. S. 629. § 359. Mitford's Pl. ch. 1, § 2, pt. 3; Cocker v. Bevis, 1 Ch. Cas. 61; and also referring to Venables v. Foyle, 1 Ch. Cas. 15 Kimberly v. Arms, 40 Fed. R. 548, 2; Whorewood v. Whorewood, 1 Ch. Cas. 558; s. c. 136 U. S. 629. 250; Wakelin v. Walthal, 2 Ch. Cas. 8. |