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be ready for hearing. The function of such a bill is to furnish a foundation in the pleadings, for evidence on both sides of the new issues of fact to determine which the rehearing is granted. When such a petition is filed, it must be supported by affidavits of the witnesses who are expected to testify to the newly discovered facts which are sought to be brought into the case,' and also by affidavits showing that those facts were not discovered by the petitioner till after the former hearing,' and could not, with reasonable diligence, have been discovered sooner than they were." Such a petition may be answered by counter affidavits tend ing to show that part or all of the statements in the petitioner's affidavits are untrue. To grant the prayer of the petition, the court must be satisfied that the applicant's affidavits are probably true,' and clearly material,' and that the facts they set forth were not known to the petitioner at the time of the former hearing, and could not, with reasonable diligence, have been discovered prior to that event. Rehearings will not be granted to enable parties to search for further evidence;' nor to strengthen their expert testimony," nor to amend their pleadings so as to make certain evidence admissible, which was taken before the former hearing, and was disregarded thereon, because not supported by any pleading;" nor to produce cumulative evidence on
1 Dexter v. Arnold, 5 Mason, 310, 1829; Daniell's Chancery Practice, 1537.
? Buerk v. Imhaeuser, 2 Bann. & Ard. 452, 1876.
3 Reeves v. Keystone Bridge Co. 2 Bann. & Ard. 256, 1876.
4 India Rubber Comb Co. Phelps, 4 Fisher, 317, 1870; Hitchcock 0. Tremaine, 9 Blatch. 551, 1872; Barker v. Stowe, 4 Bann. & Ard. 405, 1878; Willimantic Linen Co. v. Clark Thread Co. 24 Fed. Rep. 799, 1885.
Rep. 72, 1882; New York Sugar Co. v. Sugar Co. 35 Fed. Rep. 217, 1888.
? Buerk o. Imhaeuser, 2 Bann. & Ard. 452, 1876.
8 Prevost o. Gratz, 1 Peters' Cir. cuit Court Reports, 364, 1816; Baker V. Whiting. 1 Story, 234, 1810; Reeves v. Keystone Bridge Co. 2 Bann. & Ard. 258, 1876 ; Page o. Telegraph Co. 18 Blatch. 122, 1880.
9 Munson v. New York, 11 Fed. Rep. 72, 1882.
10 Hitchcock o. Tremaine, 5 Fisher, 538, 1872.
5 Blandy v. Griffith, 6 Fisher, 435, 1873.
6 Munson v. New York, 11 Fed.
11 American Saddle Co. o. Hogg, 6 Fisher, 67, 1872.
questions of fact which were in issue at the former hearing;' nor to correct errors of management committed by the petitioner's counsel.'
$ 648. A supplemental bill in the nature of a bill of review, should state the newly discovered facts upon which it is based, and should pray that the cause may be heard with respect to the new matter, at the same time that it is reheard upon the original bill, and that the party who files the subordinate bill may have such relief as the nature of his case requires. The proceedings upon a bill of this description are the same as those upon original bills in general. No order for a rehearing, made after an interlocutory decree, and while an account of profits and damages is being taken by a master in chancery, will stop the taking of that account, unless the court enters a special order directing the master to suspend proceedings therein. And where a rehearing results in a reversal of an interlocutory decree, which has been entered in favor of a complainant, and results also in a dismissal of the complainant's bill; that dismissal will be without prejudice to the use, in any subsequent accounting, of the evidence which may have been taken by the master."
8 649. A final decree will be entered in favor of the defendant, where a demurrer to the whole bill is sustained on a point which is not cured by amendment; or where a plea to the whole bill is sustained on an argument, and is thereupon replied to, and is found to be true on the trial; or where either of the numerous defences which may be made in an answer, and which apply to the whole bill, are established at an interlocutory hearing. And final decrees will be entered in favor of complainants, when their bills have successfully run the gauntlet of demurrers, pleas, answers, interlocutory hearings, petitions for rehearings, supple
mental bills in the nature of bills of review, accounting before a master, exceptions to the master's report, and final hearings, through which original bills in patent cases may regularly be caused to pass. The last three parts of this series of proceedings, are explained in the chapter on profits, and the others have already been outlined in this. Assuming therefore, that a final decree has already been entered for the complainant or the defendant, and that the costs have been adjusted and taxed according to law,' it is now convenient to delineate the further proceedings to which the defeated party may resort. These are of two kinds : bills of review, and appeals.
$ 650. A bill of review is the proper means of securing a reconsideration of a final decree after the expiration of the term at which it was entered. Such bills are of two sorts : those filed to correct errors apparent on the face of the pleadings or decree;' and those filed to introduce evidence of facts which occurred or were discovered after the decree was entered. In order to secure favorable action on such a bill, the petitioner must first pay to the opposite party the amount of the decree which he seeks to have reversed or modified, unless the court releases him from that necessity. But the court will release him if he is unable to pay;' and will probably do so where the opposite party is insolvent, if the petitioner will give good security for the money decreed, or will deposit that money in court.
$ 651. A bill of review, to correct errors apparent on the pleadings or decree, may be filed without leave of court,
1 Sections 543 to 549 of this book; Wooster v. Handy, 23 Fed. Rep. 49, 1885; Spill v. Mfg. Co. 28 Fed. Rep. 870, 1886; Hill v. Smith, 32 Fed. Rep. 753, 1887; Ryan v. Gould, 32 Fed. Rep. 754, 1887; New York Belting Co. v. Rubber Co. 32 Fed. Rep. 755, 1887.
United States, 13 Peters, 14, 1839.
Story's Equity Pleading, Section 404.
Story's Equity Pleading, Section 406
Griggs 0. Gear, 3 Gilman (Illi. nois), 17, 1845.
? Story's Equity Pleading. Section 403.
3 Whiting v. The Bank of the
? Ross v. Prentiss, 4 McLean, 106, 1846; Story's Equity Pleading, Section 405.
but no such bill will be considered or acted upon by the court, unless it is filed within the same time after the entry of the decree, as that provided for by statute relevant to appeals;' which latter space is at present two years.' Nor will such a bill be entertained, if the decree which it was filed to correct, was entered by the Circuit Court, after an appeal to the Supreme Court, and in pursuance of directions contained in the mandate of the latter tribunal.' In considering a bill of review of this sort, the court will confine its examination to the pleadings and decree in the original action, for no bill lies to correct any errors of fact which were made in examining or weighing the evidence upon which the decree was based.“
$ 652. A bill of review, filed to introduce evidence of new facts or of newly discovered facts, cannot be filed without leave of court. Where the case sought to be reviewed has not been appealed, the application for leave is made to the court which rendered the decree, but where the case has been appealed to the Supreme Court the application must be presented to that tribunal. If that court decides that the leave ought to be granted, it will return the case to the court below, with directions to receive and adjudicate the bill of review;' and thereafter the case will proceed in the lower tribunal much as it would have done if no appeal had been taken. After the bill of review has been litigated and a new decree entered, an appeal will lie to the Supreme Court on the whole case. The mode of application for leave to file such a bill, is by a petition stating the original proceedings and the new facts or newly discovered facts on the strength of which reversal of the decree is prayed."
Thomas v. Harvie's Heirs, 10 Wheaton, 149, 1825.
· Revised Statutes, Section 1008.
3 Southard v. Russell, 16 Howard, 570, 1853.
Whiting o. Bank of the United States, 13 Peters, 14, 1839; Story's Equity Pleading, Section 407.
6 Roemer 0. Simon, 2 Bann. & Ard. 72, 1875.
? Revised Statutes, Section 701, Ballard v. Searls, 129 U. S. 256, 1888.
• Ross o. Prentiss, 4 McLean, 106,
8 Massie's Heirs 0. Graham's Adm’rs, 3 McLean, 43, 1842.
The petition must be supported by affidavits stating the exact nature of those facts, in order that the court may judge of their materiality and sufficiency, and showing that they occurred after the final decree was entered, or if they occurred before that time, that they were not discovered, and could not with reasonable diligence have been discovered till afterward.' Bills of review of this sort may be filed even more than two years after the entry of the decree, provided they are filed within a reasonable time after the discovery is made upon which they are based. Leave to file such a bill will be granted, in a proper case, whether those facts relate to issues in the original action, or relate to defences which were not in issue therein ;' but it will not be granted where the facts stated in the petition are not adapted, or are not sufficient, to have altered the decree if they had been before the court on the hearing,' nor where those facts could, with reasonable diligence, have been discovered before the decree was entered, nor to enable the petitioner to introduce evidence to impeach the character of the witnesses upon whose testimony the decree was based; nor to introduce cumulative testimony on a point litigated and decided at the hearing ; but newly discovered corroborating evidence in writing may furnish a foundation for such leave. After a bill of review to introduce new facts, or newly discovered facts, has been duly filed, the opposite party may plead or answer thereto, and thus put the party who filed it, to the proof of its allegations. A demurrer to a bill of this sort is not appropriate, because its sufficiency in point of law must be passed upon before it can be filed.
Story's Equity Pleading, Sections 412, 413, and 414.
Sections 415 and 416.
2 United States V. Samperyac, Hemstead's Circuit Court Reports, 131, 1831.
3 Dexter v. Arnold, 5 Mason, 313, 1829; United States v. Samperyac, Hemstead's Circuit Court Reports, 131, 1833; Story's Equity Pleading,
* Dexter v. Arnold, 5 Mason, 313, 1829.
5 Rubber Co. o. Goodyear, 9 Wallace, 806, 1869.
6 Southard o. Russell, 16 Howard, 569, 1853.
? Dexter o. Arnold, 5 Mason, 309, 1829.