Elizabeth Bradshaw, et al. vs. Lewis Garrett, et ux., 1 Port. 47

By Mr. Justice Thornton : This case comes into this court by appeal from a final decree of the chancellor below, dismissing a bill of review, allowed for the purpose of opening a decree pronounced, perpetuating the injunction of a judgment at law.

The injunction was granted upon allegations that the note’upon which the judgment at law was obtained, was executed to the intestate of the appellants without any good or valuable consideration, but upon a false representation by him that he had advanced the amount of said note in satisfaction of a certain judgment, for which the estate of one Ogelvie, (of whom Garrett’s now wife, was late relict, and co-administratrix with Bradshaw) was liable; and that the false representations were not discovered in time to defend at law.

The appellants answered the said bill, denying the alleged illegality in the consideration of the said note. Afterwards, upon the final hearing of the cause, the injunction was perpetuated by the decree of the chancellor. At the next term after this decree was rendered, the appellants, filed a bill praying for a review of the said cause, because of sundry errors assigned as apparent in the decree, as also because of new matter, discovered, as is alleged, too late to be available on the former trial.

The failure of the consideration of .the note upon which the judgment at law was obtained, rests upon the proof relative to the statement of the said Bradshaw to the appellees; that he had paid the amount towards the discharge of thejudg-toent above mentioned ; and the further proof, that the said judgment was in fact, satisfied by otlicv moans, and not by Bradshaw.

The new matter disclosed in the bill of review, is a receipt in the following words : “ Bee. 16th, 1822-Re- ceived of Lewi's Garrett one hundred and twenty-five dollars in full of all moneys paid by me as administrator of the estate ■ of Ogelvie, dec’d, to .the following persons, to-wit, &c.” specifying the amounts paid each, and tested by the hand and seal of the testator Bradshaw, and then the additional explanatory facts, supported by parol testimony, that Garrett held such receipt in his possession during the pendency of the former trial, and acknowledged that ho executed the note upon which the enjoined judgment was recovered, upon the execution of the receipt-the one hundred and twenty-five dollars named therein being paid by the said note, and not'in money as therein stated.

Tins new matter would,it is apparent, have had power- * > ful weight the former trial, if it had not produced an en- tirely different result; but before we can advance to an ex- amination of the whole evidence and to a decision upon it, we are mot by the .preliminary question (which arises in eve- ry case upon ¡appeal from the final decree on a bill of review) whether it was competent for the chancellor, according to the settled rules regulating his discretion in such cases, to grant the prayer of the bill and open the decree already pronounced between the parties.

A bill of review A bill of reviewmaybe granted either for errors of law ap-, parent in the decree, or for the discovery of new matter. The former ground not being relied on in this case, it rests upon the new matter disclosed in the bill. The settled rule in The settled rule inrelation to bills of icview, and the new matter upon which they originate, is that no review ought to bo granted of a fact formerly in issue, on account of evidence newly discovered, unless that evidence be in writing or re cord, and does not consist in swearing oniy.

In order to . apply tins rule, us first see what is the nature of the new matter disclosed in this bill of review-that is, whether it be ~- 3 Mars. 121 it be new matter pressing- upon the decree, which was not in issue on the former trial — or cumulative testimony only, in support of the same issue. To test this, what was the matter which properly constituted the issue in the original trial ? The bill for the injunction was solely founded on the allegation of fraud in the consideration of the note sued upon at law ; the issue was the validity, or not of its consideration.

The new matter, acewding to my apprehension, is nothing else than testimony to that it sue. Such being the nature of this new matter, it would clearly be an insufficient foundation for a review, unless, kinder the exception expressed in the rule above laid down, such new matter or evidence be in writing or record, and does not consist in swearing only. Thi„s leads us to íheconskleí-utiivi of the new matter in reference to that exception fo the rulo. So far as it consists'in writing, it is a receipt executed by the intestate cf the appellants, as copied above.

This by itself, without the parole testimony accompanying .and explaining it, sheds not the least light, upon the former issue. It is the parole testimony of Garrett’s possession of this paper, and bis acknowledgments respecting it, together with the proof that it was for Garrett’s note for the one hundred and twenty-five dollars, and not for the sum in money, as it purports to be, which, alone render the writing in the least degree material, or even admissible as evidence on the first trial.

The newly discovered written evidence then, I consider wholly nugatory, unless the parole evidence alluded to b.e also introduced; which it seems to bo well settled, cannot be admitted as to a point put in issue in the former trial. The operation of the general rule, may in this instance, seem to inñicí a particular hardship, which is often the case with the general rules of law : but the rule cannot be departed from.

Its tendency is highly salutary, impelling the parties to diligence in the prosecution of their rights — tending to terminate litigation as a preventive of perjury and its subornation — and of the undue advantage which would often be sought, by withholding the matter and taking the chances of a trial, then in case of a failure, introducing the cumulative "evidence by bill of review, when by lapse of time, the means of meeting it on the other side may have been swept from the scene of action. The principles of equity applied in this d;;-cisson, are recognised by this ■ ourt in the case of Caller vs.

Malone, in which there is a luminous exposition of the authorities relative to this branch of equitable jurisprudence. This is the course of reflection, by which I have arrived at the conclusion, that the decree appealed from, should be affirmed. In this conclusion there is a concurrence of the whole court; but my brethren entertain the opinion that the rule laid down above, that no review ought to be granted of a fact formerly in issue, on account of evidence uewly discovered, ought not to be extended to embrace the new facts set up in this bill.

They consider, and perhaps with the best reason, that as the complainants in the bill for review, were only rep' esentatives of the deceased, William Bradshaw, and so not presumed to be cognizant of the facts; and as the facts themselves as set up, are more properly rebutting of those adduced on the other side, than strictly cumulative upon others; before proven upon the same point by them ; it would have been admissible to allow them the benefit of those facts by bill of review, if they had used the requisite diligence to procure them in the former trial.

This latter view of the case, makes it necessary to consider whether such diligence was used; as in any event, let the facts be of what nature they may, should be required of a litigant, and in default of . which, a bill of review would not be entertained. The facts came to the knowledge of the complainants about the 25th of August, and the trial term of the I iawrence court at which the cause was heard, commenced on the first Monday in September following.

Whether there would have been a reasonable time in this interim to have taken the necessary proofs, the record does not disclose enough of the attending circumstances to enable us to determine. If however, th» distance of the residence of the Pparties and witnesses were such, as made it impracticable, with ordinary diligence, to take the proofs, yet it surely was incumbent on the parties to" apply for a continuance of the cause which we are bound1* to infer would have been granted upon proper affidavits of the matters to be proved.

No sufficient excuse is afforded for. this omission, and hence, even if the matters discovered could otherwise furnish ground for a review, we all concur in the opinion, that the complainants cannot now disturb the former adjudication — not having done every thing which could be reasonably require-1,, to avail themselves of the new matter during its pendency. - 3 Mars. 121 Hardin, 342