been if that decree had not been executed. (r) If the bill is brought to review the reversal of a former decree, it may pray that the original decree may stand. (s)

If the original suit has abated, the bill may also be at the same time a bill of revivor.(t) And a supplemental bill may likewise be added, if any event has happened which requires it; and, particularly, if any person not a party to the original suit becomes interested in the subject, he must be made a party to the bill of review by way of supplement.(u) A bill of review, defective in frame, may sometimes be sustained as a cross bill. (v)

SECTION VI.

DEFENCE TO.

The usual mode of defence to a bill of review, founded upon alleged errors apparent from the decree, is to plead the former decree in bar of the suit, and to object by demurrer to the opening of the enrolment; alleging, as a ground of demurrer, that there is no error in the decree. (w) Or if the bill be brought on new matter fitting to be answered, the defendant must put in an answer, or plead thereto.(x)

Plea.] It seems that it is not necessary to plead the former decree, if such decree is fully and fairly stated in the bill of review ;(y) and the books of practice contain the forms of a demurrer only to such a bill. There are also authorities to the same effect.(z)

Where any matter beyond the decree-as length of time, a purchase for a valuable consideration-or any other matter, is to be offered against opening the enrolment, that matter must be pleaded.(a) If new matter is made the subject of a bill of review, such bill is liable to any plea which would have avoided the effect of that matter if it had been charged in the original bill.(b)

Pl. 95.

Coop. 95.

Coop. 215, 216. Slingsby v. Hale, 1 Ch. Mitf. Ca. 122. Jones v. Kenrick, 5 Bro. P. C. 244, 248.

99

If a demurrer to a bill of review has been allowed, the order allowing it is an effectual bar to new bill of review on the same grounds, and may be pleaded accordingly.(c)

If a decree is sought to be impeached on the ground of fraud, the proper defence seems to be a plea of the decree, accompanied by a denial of the fraud charged.(d)

Upon a bill of review for newly discovered evidence, the other party may controvert, by plea or answer, the fact that it is newly discovered.(e) But under the 173d rule of this court requiring application to be made to the court for leave to file a bill of review, it is probable that questions of this nature would be determined by the court upon the hearing of the petition; without compelling the party to plead the fact.(f)

It is not necessary to plead the act of limitations against a bill of review—(i. e. in this state, the lapse of the time mentioned in the 173d rule for bringing bills of this kind)—for it ought to appear in the bill itself that it is exhibited within the time prescribed by law, or that the complainant is protected by some of the savings in the act; otherwise it ought not to be received.(g)

Demurrer.] It is laid down in the English books that a bill of review, upon the discovery of new matter, is seldom liable to demurrer ; for 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. (h) This remark is equally applicable here to bills of review filed for errors in law, inasmuch as by the 173d rule they cannot be filed without leave, any more than bills upon new matter.

Yet it seems a demurrer will lie to a bill of review for new matter not relevant, though the relevancy ought to be considered when leave is given to file the bill.(i) If the bill is not filed within the proper time, that is also a good cause of demurrer.(k)

On the argument of a demurrer to a bill of this nature, where several errors in the decree have been assigned, if the complainant should prevail only in one, the demurrer must be overruled; as one error will be sufficient to open the enrolment. And on argument of a demurrer to a

(c) Denny v. Filmer, 2 Ca. in Chan. 133. 1 Vern. 135. Pitt v. Earl of Arglass, 1 Vern. 441.

(d) Mitf. Pl. 293.

Dexter v. Arnold, 5 Mason, 303. Lube, 249.

(f) Such is the practice in Maryland. See Hodges v. Milliken, 1 Bland, 506. Shepherd v. Larue, 6 Munf. 529. (h) Mitf. Pl. 205. Welf. Pl. 243. (i) Id. ib. 2 Atk. 40.

(k) Edwards v. Carroll, 2 Bro. P. C. 98. Mitf. 204.

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bill of review for error apparent in the decree, the court has ordered the defendant to answer; saving the benefit of the demurrer to the hearing; and on the hearing, has finally allowed the demurrer.(1)

The regular defence to a bill of review for error apparent, being as already stated, (ante, p. 98,) to plead the decree in bar to the new suit and demur to opening the enrolment, on the ground that the errors assigned are not such as to entitle the complainant to have the decree reviewed, much less reversed, the first question is whether the enrolment should be opened and the decree reviewed. And this is argued upon the demurrer, when nothing can be read but what appears upon the face of the decree. If the demurrer is overruled, then arises the second question whether the decree ought to be reversed; and the complainant is at liberty to read bill and answer, or any other evidence, as at a re-hearing; the cause being equally open.(m)

If the bill has assigned errors of law, and the plea and demurrer are allowed, an order to that effect is made, and that the bill be dismissed.(n) There is then an end of the suit, as no fresh bill will be permitted after demurrer allowed. (o)

If the demurrer or demurrer and plea are overruled, the usual decree is that the original decree be reversed, and that the errors be allowed. (p)

Answer.] If the bill of review be brought on new matter, fitting to be answered, the defendant may put in an answer controverting the fact that the matter is newly discovered. (q)

So if a bill is brought for new discovered matter, and a demurrer, or plea and demurrer, are overruled, it is laid down that the defendant must answer; as fact is in issue. (r) The case will proceed upon such a bill as upon an original bill.(s)

(1) Mitf. Pl. 204.

m) Lube's Eq. Pl. 248. (n) Webb v. Pell, 3 Paige, 368.

Woots v. Tucker, 2 Vern. 120. Denny v. Filmore, 1 id. 135. Pitt v. Earl of Arglass, id. 441.

(P) Cook v. Bamfield, 3 Swanst. 607. (9) Lube's Eq. Pl. 132. Dexter v. Arnold, 5 Mason, 303.

Cook v. Bamfield, 3 Swanst. 607. 2 Hoff. Pr. 12.

CHAP. VII.

BILL OF DISCOVERY.

Sect. 1. NATURE of, and when PROPER.

2. FRAME Of.

3. DEFENCE TO.

4. PRACTICE UPON, GENERALLY.

SECTION I.

NATURE OF, AND WHEN PROPER.

EVERY bill is in reality a bill of discovery; but the kind of bill usually distinguished by that title is a bill for the discovery of facts resting in the knowledge of the defendant, or of deeds, or writings, or other things, in his custody or power, and seeking no relief in consequence of the discovery, though it may pray for a stay of the proceedings at law until the discovery shall be made. It is commonly used in aid of the jurisdiction of some other court. Indeed, some allegation of a proceeding pending or intended seems indispensable. (a) It is used to aid a jurisdiction which cannot compel evidence on oath.(b)

The complainant, in this species of bill, must be entitled to the discovery he seeks, and can only have a discovery of what is necessary for his own title-as of deeds he claims under-and will not be allowed to pry into that of the defendant. (c) Thus, any person in possession of an estate, as tenant or otherwise, may file a bill against a stranger bringing an ejectment, to discover the title upon which the ejectment is brought. (d) A devisee is also entitled, against the heir, to a discovery of deeds

(a) Mitf. Eq. Pl. 53. Welf. Eq. Pl. 118.

(b) Dunn v. Coates, 1 Atk. 288. 1 Ves. 205. Anon., 2 Ves. 451.

(c) 2 Ves. 445. Coop. Pl. 58.
(d) 1 Ves. 249.

relating to the estate. (e) An heir is likewise entitled to a discovery from a devisee whether the devise is not in trust for secret charity.(ƒ)

A bill of discovery does not lie, however, in aid of an action which, upon the case stated by the bill, it appears to the court the complainant cannot maintain.(g) But if the bill is for discovery only, it is not necessary to aver that the party cannot otherwise establish his defence at law. On the contrary, it is laid down that a party may maintain a bill of discovery, not only when he is destitute of other evidence to establish his case, but also to aid such evidence, or to render it unnecessary.(h)

In Bent v. Young, (i) a demurrer was allowed to a bill of discovery in aid of the defence to a suit in a foreign court. But it has been decided in this state that a bill of discovery in this court to aid the prosecution or defence of a civil suit in a foreign tribunal may be sustained.(k)

If the complainant in a bill for discovery and relief appears entitled to the discovery, he may sustain his bill, although it goes on to ask for relief which cannot be granted, and to which a demurrer would lie. general demurrer to the whole bill, in such a case, is bad, upon the principle that a demurrer bad in part is bad in the whole. (1) This is contrary to the English rule.(m)

By the 24th rule of this court, whenever a discovery is necessary, the complainant, upon filing an affidavit thereof at the same time he files his bill, may have an order that the defendant answer it in forty days, or that an attachment issue; and upon his default, on filing an affidavit thereof, an attachment may issue accordingly. And the court will not, in that stage of the cause, inquire whether an answer is actually necessary for the purposes of the suit.(n)

After a verdict has been obtained at law, it is too late to file a bill of discovery.(0)

A bill of discovery to aid a suit at law will be sustained, if the case is a proper one for discovery, although the sum in controversy is less than one hundred dollars. (p) It will also lie for the purpose of resisting a

(e) Duchess of Newcastle v. Lord Pel- John. Ch. Rep. 294. ham, 8 Vin. Ab. 551.

(ƒ) 6 Ves. 52. 9 id. 516. (g) Welf. Eq. Pl. 119.

(h) Montague v. Dudman, 2 Ves. 398. March v. Davison, 9 Paige, 580. Brereton v. Gamul, 2 Atk. 241. Wigram on Disc. 4, 5, 25. Hare on Disc. 1, 110. (i) 9 Sim. 180.

(k) Mitchell v. Smith, 1 Paige, 287. (1) Leroy v. Servis, 1 Caines' Cas. in Er. 1, 175. Livingston v. Livingston, 4

Laight v. Morgan,

1 John. Cas. 429. 2 Caines' Cas. in Er. 344. Kimberley v. Sells, 3 John. Ch. Rep. 467. Higginbotham v. Burnet, 5 id. 184.

(m) See Story's Eq. Pl. 253.

(n) Stafford v. Brown, 4 Paige, 360. (0) Duncan v. Lyon, 3 John. Ch. Rep. 355. Thurmond v. Dunham, 3 Yerg. 99. (p) Goldey v. Becker, 1 Edw. 271. Schroeppel v. Redfield, 5 Paige, 245.