McDougald's Adm'r v. Dougherty , 39 Ala. 409 ( 1864 )

STONE, J.

In the original case between these parties, the decree was pronounced, dismissing the complainant’s bill, at the November term, 1855. In March, 1856, the complainant petitioned the chancellor for leave to file a bill of review, accompanying his petition with the bill he proposed to file ; and the chancellor made an order, granting the prayer of the petition. The petition for leave to file the bill was sworn to by the complainant, and sets forth the grounds on which the claim is based. In form, these preliminary proceedings conform to the rule.—Code, §§ 2952-3; P. & M. Bank v. Dundas, 10 Ala. 669; Massie v. Graham, 3 McLean, 43; Story’s Eq. Pl. § 420. The bill of review rests its claim to relief on the two grounds of error apparent, and newly discovered testimony. The chancellor decreed in favor of complainant on the first ground, and denied him relief on the second.

Tbe principles wbicb govern bills of review grow out of the ordinance of Lord Bacon, which constitutes the foundation of the system, and, it is said, has never been departed from. It is as follows: “ No decree shall be reversed, altered, or explained, being once under the great seal, but upon a bill of review; and no bill of review shall be admitted, except it contain either error in law, appearing in the body of the decree, without farther examination of matters of fact, or some new matter which hath arisen after the decree, and not any neto proof tohich might have been used when the decree was made. Nevertheless, upon neto proof that is come to light after the decree made, and could not possibly have been used at the time when the decree passed, a bill of review may be grounded by the special license of the court, and not otherwise.”—Dexter v. Arnold, 5 Mason, 310.

In the English chancery, it is the rule to embody in the decree all the material facts of the case. This does not necessarily, or even generally, include the evidence which establishes the facts; but the conclusions of the chancellor, the facts found. These facts may consist of admissions found in the pleadings, proofs furnished by documentary evidence, or convictions, either positive or inferential, which are the result of parol proof. All these facts are presented in the body of the decree; and the rule there is, that the error which will justify a bill of review, must be apparent in the body of the decree. The testimony cannot be looked to, either for the purpose of correcting any statement of fact found in the decree, or of supplying any fact omitted from the statement. Hence, it is strictly true that, in England, the ordinance of Lord Bacon has never been departed from. See Perry v. Philips, 17 Vesey, 176; O'Brien v. Connor, 2 Ball & Beatty, 152; Haig v. Homan, 8 Clark & Fin. 370; Case of Fanshaw, Hard. 174; Combs v. Proud, 1 Cas. in Chan. 54; Mellish v. Williams, 1 Vern. 166; Trulock v. Roby, 16 Sim. 277; Mitf. Ch. Pl. 84; 3 Dan. Ch. Pr. 1727; Story’s Eq. Pl. § 405.

But, in this country, the practice has never prevailed of embodying or expressing the facts in the decree; and out of this has grown a modification of the English rule, so as to accommodate the remedy, as far as practicable, to the change. In South Carolina, it is held, that a bill of review will not he for error apparent; for, as the decree can only be looted to, and that contains no statement of facts found, there can be no such thing as error apparent.—See Manigault v. Deas, 1 Bail. Eq. 296; Perkins v. Lang, 1 McCord’s Ch. 30. So, in Tennessee, it was ruled that, as a statement in the body of the decree, of the facts on which it rests, furnishes the only evidence which, under the rule, can be looted to on the question of error apparent, the omission of such statement is itself error apparent, which will sustain a bill of review.—See Burdine v. Shelton, 10 Yerger, 41. This decision gave rise to a statute in Tennessee.—See Eaton v. Dickinson, 3 Sneed, 402. So, in Ohio, it was decided that, if no statement of the facts was put in the decree, the whole record of the former suit, including the evidence, was open to examination on the question of error apparent.—See Ludlow’s Heirs v. Kidd, 1 & 2 Ohio Rep. 463; Strader v. Byrd, 7 ib. 184; Stevens v. Hay, 15 ib. 313.

If the question before us were an open one in this State, we would not feel inclined to adopt the rule, either of South Carolina, Tennessee, or Ohio. But it is not an open question.—See Caller v. Shields, 2 Stew. & Por. 424; P. & M. Bank v. Dundas, 10 Ala. 667.

The rule, as modified and acted on in the American courts, is not always expressed in the same language. It has been decided that, on the question of error apparent, the court is authorized to consult and examine the “ bill, the answer and other pleadings, and the decree;” (Whiting v. Bank U. S., 13 Peters, 14;) “ the bill, answers, and other proceedings;” (Dexter v. Arnold, 5 Mason, 311;) “the bill, the proceedings thereon, and the decree(Turner v. Berry, 3 Gilman, 543;) “the pleadings and proof, to ascertain the facts on which the decree is based.”—P. & M. Bank v. Dundas, 10 Ala. 667.

Mr. Story, in his Equity Pleadings, (section 407,) says : “ Eor the purpose of examining all errors of law, the bill, answers, and other proceedings are, in our practice, as much a part of the record before the court, as the decree itself; for it is only by a comparison with the former, that the correctness of the latter can be ascertained.”—See, also, Mitford’s Ch. Pl. 84, and notes; 3 Dan. Ch. Pr. 1727, and notes; 4 Bouv. Ins. 347. The following authorities are confirmatory of this view: Goodhue v. Churchman, 1 Barb. Ch. 597; Getzler v. Saroni, 18 Ill. 517; Randon v. Cartright, 3 Texas, 268; Kennedy v. Georgia State Bank, 8 How. U. S. 609; Webb v. Pell, 3 Paige, 371; Fay v. Foy, 25 Miss. 212.

All the cases, English and American, except those from Ohio, agree in this, that on bill of review for error apparent, judgments or inferences of fact cannot be tried or retried. If the chancellor, on the first trial, has decided that a fact exists, or does not exist; or, if the decree be silent on the question of what the evidence, or any part of it, proves,, or fails to prove, — then such evidence cannot be looked to or considered on the question of granting a review of a decree enrolled. “ You are not at liberty,” says Mr. Justice Story, “ to go into the evidence at large, in order to establish an objection to the decree, founded on the supposed mistake of the court in its own deductions from the evidence.”—Whiting v.Bank U. S., 13 Peters, 14. “From the¡ very nature of the proceeding” [bill of review], “it is-manifestly necessary to state all of the proceedings in the original cause, except the evidence on which the court found the facts on which it proceeded to render a decree. Upon a bill of review, the sufficiency of the evidence to establish the facts, as found, cannot be controverted. It is not of a misjudging of the facts that a party can complain, but for an improper determination of the law.” Turner v. Berry, 3 Gilman, 544. Facts may be looked to, but not the evidence which proves or disproves those facts. See authorities supra; also, Dougherty v. Morgan, 6 Monroe, 152; Barnum v. McDaniels, 6 Verm. 179; Evans v. Clement, 14 Ill. 208; Wiser v. Blachly, 2 Johns. Ch. 491; Burdine v. Shelton, 10 Yerger, 41-45.

Lord Eldon, in the case of Perry v. Philips, (17 Vesey, 178,) while stating that the error, which will justify a- bill of review, must be apparent, and of matter of law, uses the remark, that “there is a great distinction between error in the decree, and error apparent; the latter does not apply to merely erroneous judgment.” Wb.etb.er tbis distinction, wbicb does exist, is expressed witb tbat clearness wbicb will enable tbe profession to comprehend it readily, is not for us to determine. Lord Manners, in tbe case of O’Brien v. Connor, (2 Ball & Beatty, 154,) was more bappy. He says, tbe ground of a bill of review must be “ an error in point of law; tbat is, an erroneous result drawn by tbe court from tbe facts apparent on tbe record.”

Wbat Lord Eldon really meant by tbe expression, “ erroneous judgment,” is shown by bis own decisions, and by all tbe authorities, to be wbat we have stated above; namely, tbat it is not permissible to look at tbe testimony, witb a view of determining whether tbe chancellor scanned it properly, allowed it proper weight, or drew correct inferences from it. These are questions wbicb arise on appeal, but not on bib of review. In tbe latter, tbe chancellor deals witb record facts, not tbe evidence wbicb goes to prove them.

It is also said, tbat tbe error apparent, which will uphold a bill of review, must be an error of law. Tbis is true; but it is doubtful if it be sufficiently definite. It may consist of error of law in tbe ordinary acceptation of tbat expression ; such, for instance, as misjudging and misapplying tbe law to tbe facts stated; an erroneous and illogical conclusion from given premises. Or it may consist of an inadvertence; such as mistaking one name for another name, or one thing for another thing. Tbis sometimes springs from a confused understanding of tbe names of parties, or of tbe description of property in controversy.

There are some old decisions, wbicb confound tbe expression, “error apparent,” witb palpable error, or inadvertence; and tbe tendency of these decisions is to confine the relief for error apparent to tbat class of accidental, or inadvertent errors, on wbicb tbe chancellor does not appear to have exercised bis judgment or reasoning powers.—See Wiser v. Blachly, 2 Johns. Ch. 491; Caller v. Shields, 2 Stew. & Por. 417; Williams v. Murphy, 1 Porter, 40. These decisions were probably caused by tbe example of error apparent given by Lord Eldon, in tbe case of Perry v. Philips, 17 Vesey, 178. It is doubtful'if tbis ever was tbe correct rule.—See Combs v. Proud, 1 Cas. in. Ch. 54; Mellish v. Williams, 1 Vern. 166.

But, whatever the rule may have been originally, the modern decisions have clearly defined it to be what we have declared above. In Evans v. Clement, (14 Ill. 209,) the court, speaking of the rule, said, it “has now become well settled, that the court will, on such a bill, reverse or revise its own decree, for an erroneous application of the law to the facts found, whenever a court of appeals would do so for the same cause.” The following authorities, in the statement of the principle and in the relief granted, sustain our view:—P. & M. Bank v. Dundas, 10 Ala. 667; Mitf. Eq. Pl. 84; Bank U. S. v. Ritchie, 8 Peters, 140; Tomlinson v. McKaig, 5 Gill, 278; Hollingsworth v. McDonald, 2 Har. & Johns. 238; Alexander v. Slavers, 7 B. Monroe, 355; Whiting v. Bank U. S., 13 Peters, 14; Barnum v. McDaniels, 6 Verm. 179; Randon v. Cartright, 3 Texas, 268; O’Brien v. Connor, 2 Ball & Beatty, 154; Trulock v. Robey, 15 Sim. 277.

Our predecessors, in the case of P. & M. Bank v. Dundas, (10 Ala. 667,) fell -into a verbal inaccuracy, when they said that the court, on bill of review, could look into the 'proof, to ascertain the facts upon which the decree was based. They could not have meant the testimony in the general sense of that term; for that would have been contrary to what they had just announced was the rule — namely, that the bill would not lie “for error merely in the judgment.” It also stands opposed to all the authorities on the subject, English and American, except the decisions in Ohio. What they meant must have been the pleadings and proceedings in the cause; for facts established by admissions in the pleadings, or shown to exist in the proceedings in the cause, are as clearly part of the record within the American rule, as if they were recited in the decree.

Several able and well-considered opinions discuss facts of the class stated above, and make them the basis of relief. In the case of the U. S. Bank v. Ritchie, (8 Peters, 140,) Chief-Justice Marshall, delivering the opinion, consulted and commented on all the pleadings, the return on the process, the order appointing the guardian ad litem, the decree, tbe order appointing an auditor to receive the proof of claims, the order appointing a trustee to make sale of the property, and the report of the sale made by the trustee; and he based his decree on the errors apparent in all of these. In Alexander v. Slavers, (7 B. Monroe,) the court consulted the pleadings, and learned therefrom that proper parties were not before them; and, on this ground, entertained a bill of review for error apparent. In the case of Dexter v. Arnold, (5 Mason, 316,) the court considered the report of the master, exceptions to it, and the decree upon it. In the case of P. & M. Bank v. Dundas, (10 Ala. 667,) the court considered and commented on the report of the master, in determining the question of error apparent. See also, on this point, Story’s Eq. Pl. § 420; Hollingsworth v. McDonald, 2 Harris & Johns. 238; Turner v. Berry, 3 Gilman, 543; Randon v. Cartright, 3 Texas, 268.

In the case of Hollingsworth v. McDonald, (supra,) the court stated, as one ground why relief was withheld on the bill of review, that certain deeds, which were the foundation of the original suit, were not brought before the court as “part of the proceedings” of the former suit.

In the case of Tomlinson v. McKaig, (5 Gill, 278,) the court used the following language: “In this State, the English practice of stating the proceedings in the decree has not prevailed; and to make the bill of review as effective as it is in the English court of chancery, t,he proceedings in the cause should be the subject of revision on a bill of review, in the same manner as if they were stated on the face of the decree. Unless such an examination was allowed, few cases would occur in which bills of review could effect the object intended to be attained by them.” This language, which, in the main, seems reasonable, is perhaps expressed a little too strongly. We have shown above that, on the question of decreeing in favor of a bill of review, the testimony taken in the original suit cannot be consulted on the allegation of error apparent; in other words, that such testimony cannot be looked to, either for supplying a fact not stated, or of disproving any statement of fact found in the proceedings. Now, when it is remembered that, under the English rule, the decree contains a statement of the facts — as well those facts which are proved by the testimony, parol and documentary, as those established by the pleadings and the after proceedings — it is manifest that, under the American rule, the relief afforded by bills of review for error apparent is much less extensive than that which is administered under the English rule.

We are not able to fully harmonize all the American authorities on this question. We think, however, that a-decided preponderance of them, both in numbers and ability, establishes the proposition, that on the inquiry of error apparent, which will uphold a bill of review, the court is permitted to examine the whole record of the former suit— the entire proceedings — except that which may be classed as testimony.—See authorities supra; also, Barnum v. McDaniel, 6 Verm. 179; Evans v. Clement, 14 Ill. 208; Getzler v. Saroni, 18 Ill. 517.

We have encountered some difficulty in determining, satisfactorily to ourselves, whether, under the denomination of record and proceedings, we may not, on bill of review for error apparent, examine evidence that was submitted in the original cause, and which is strictly documentary and self-proving. We find no authority for such discrimination; and while there are doubtless many cases, (and this may be one of them,) in which such practice could work no injustice, the uncertainty of any rule we might lay down, and its liability to abuse, deter us from making any attempt to extend a principle, which, under our liberal system of appeals, has become in a great degree unnecessary. It is not without the range of possibility that a deed or mortgage, which proves a cardinal fact in a cause, is self-proving under our statutes (Code, § 1275); yet the record may contain parol proof which-satisfies the chancellor that such deed or mortgage is wholly invalid as a foundation for relief. Now, suppose that, in such case, the chancellor dismisses the complainant’s bill, without stating the facts on which his decree rests. In such case, if we look at the pleadings, the documentary, self-proving evidence, and the proceedings and decree, and discard from our consideration the parol proof, the record will, in all probability, be reversible for error apparent.

Without inquiring whether other cases might not arise, which would present the liability of any such rule to abuse, in a light equally glaring, we hold that documentary evidence, even though self-proving, is not, of its own force* examinable on bill of review for error apparent. This rule embraces all record and documentary evidence, which, to entitle it to consideration, must be offered in evidence, and of which a note is required to be made on the minutes, under the 71st rule of chancery practice.—See 24 Ala. XV. It does not embrace exhibits, the factum, and legal continuing validity of which are admitted by the pleadings; for they stand in the category of facts stated on the record, and are not the subject of proof or testimony.

There appears to be no uniform rule, in the American courts, on the subject of the form of decrees in chancery. Many chancellors embody, in one continuous order, the discussion of points of evidence, and its credibility and weight — a statement, more or less complete, of the facts found — the arguments, both of fact and of law, on which the decree is based, and the decree itself. Such seems to have been the rule with Chancellor Walworth, and with the chancellors of South Carolina, and of other States. The form adopted by Chancellor Kent is not clearly shown in the reports; but he probably made no separate decree, other than the entry by his clerk or register of the decree which he sketched in his opinion.

In this State, the practice of chancellors has varied; some following the plan which seems to prevail in South Carolina, while others have separated the decree from the opinion; and yet others have pursued the plan of simply stating results, without any statement of facts, or of arguments, to support them. But, whether the opinion and decree be found in one order, or in separate orders, we believe it may be affirmed as universally true, that the opinion, if one be delivered, contains premises and arguments, which, in the mind of the chancellor, tend to sustain the conclusions expressed in the decree. The deductions and statements of fact, made in the opinion, are as much the solemn and deliberate action of the chancellor, as the decree itself. We are not able to perceive the reason for a rule, which binges tbe admissibility of solemn statements of fact made by the chancellor, on the accident or habit which may cause him to place his facts and his decree — his premises and his conclusions — in one order, or in two orders.

With the explanations offered above, we adopt the rule, that on the question of error apparent, that will justify a bill of review, it is permissible to consult all the facts which are apparent in the pleadings, in the process, and its service, in orders, reports confirmed, and opinions and decrees of the chancellor.

In the original suit between these parties, the chancellor dismissed the complainant’s bill, on the single ground that the complainant had not furnished sufficient evidence of the execution of the deed of assignment from Daniel McDougald to Jones and Alexander. The original deed, as we learn from the opinion, was not produced; and what purports to be a copy was attached to the bill as an exhibit. Aside from the fact that some of the defendants were infants, the answer of at least one adult defendant failed to admit the execution of the deed of assignment. This rendered it necessary that the complainant should prove its execution. The precise ground taken by the chancellor, in disposing of the original cause, is stated in the opinion which accompanied his final decree. In that opinion are the following statements:

“Many interesting questions have been presented, discussed by counsel, and most of them examined by me with great care; but, as the complainant must fail, for want of proof of the execution of the deed of assignment from Daniel McDou-gald to Seaborn Jones and Bobert B. Alexander, I have thought it not necessary for me to express an opinion on other questions. This deed purports to have been executed in Muscogee county, Georgia; but there is no evidence that it was ever registered in that State. The original deed is not produced,” &c.

After alluding to certain testimony, which left on the mind of the chancellor a doubt whether the original assignment had or had not been destroyed, the chancellor proceeds : “ A copy of what purports to be the deed is annexed to the bill; and the witness O’Neal, who was a deputy of the clerk of the county court in this county, testifies, that the copy appended to the interrogatories propounded to him, (which, no doubt, is in the same words and figures of that attached to the bill,) is the copy of an original recorded by him and Simeon O’Neal. This record has annexed what purports to be the copy of the certificate of Thos. M. Kemp, as a justice of the peace of this county, of the acknowledgment of the deed of McDougald before him. This record shows that the deed was witnessed by William Henry Watkins and John A. Norton, both of whom are proved to be dead. There is no testimony as to whether Simeon O’Neal, who was the principal clerk of the county court of this county at the time the record purports to have been made, is dead; and no reason is shown why his deposition was not taken. Nor is there any evidence that either the probate office of this county, or the papers of Alexander, have been searched for the original; nor is the hand-writing of McDougald, either of the subscribing witnesses, or Kemp, proved; or that the latter was justice of the peace. The only fact which we have certainly established, is, that at the date oí the record, a paper purporting to be such deed was recorded. Who brought it to the office for that purpose, or who took it away, if any one, is wholly unproved. Is this sufficient to show that such a deed was executed ? The record of a de'ed of this kind is mere notice, and can not dispense with proof when offered in evidence. The certificate of the justice of the peace was sufficient to authorize its registration; but it can have no effect [as evidence].—Desha, Sheppard & Co. v. Scales, 6 Ala. 356; Cowen & Hill’s Notes, 1220. Had Kemp been alive, he would have been competent to establish the deed, as it was acknowledged before him. But there is no law which makes his certificate evidence, even if it had been proved that he was a justice of the peace, and that he had in fact made such a certificate; because the certificate of a justice of the peace to such a deed is only evidence for the single purpose of registration.”

It is true, as stated by the chancellor, that there was no statute applicable to this case, which made the certificate of the justice of the peace evidence of the execution of a deed like the one wbieb is the foundation of this suit. The original suit — the one in which he pronounced the decree from which we have quoted — was pending on the 17th January, 1853, when the Code became operative.; and hence the proceedings in the original cause were not affected by the provisions of that body of laws.—Code, § 12; Hiscox v. Hendree, 27 Ala. 216. The law is now changed (Code, § 1275); but, in determining the question of the admissibility of the deed of assignment, the chancellor was governed by the old law, which did not make a mortgage, or other conditional conveyance, acknowledged and recorded, evidence without proof of execution.—Clay’s Digest, 153, § 7 ; ib. 154, § 17; ib. 255, § 2.

In ruling that it was necessary that proof should have been furnished that Thomas M. Kemp was a justice of the peace, the chancellor erred. The courts judicially know that he was a justice of the peace in Bussell county at that time.—See Ragland v. Wynn, 37 Ala. 32; Doe v. Kelly, 28 Ala. 181; Ingram v. State, 27 Ala. 20; 1 Greenl. Ev. § 6; Despan v. Swindler, 3 Mart. (La. N. S.) 706; Follain v. Lefevre, 3 Rob. (La.) 14; Lessee of Willick v. Mills, Peters’ C. C. 429; Hawks v. Kennebec, 7 Mass. 461; Ripley v. Warren, 2 Pick. 596.

In the decree, affirming the legal sufficiency of the bil-of review, the chancellor decided that he had committed an error of law in the decree in the original cause, in this, that he had, ex mero motu, rejected the deed of assignment as not proved, (the evidence, as he said, being only secondary,) when he should have allowed the evidence, offered as it was without objection. It is probably true that the chancellor, if this question was properly before him, did rightly rule that he should not, himself, have raised this question on the former trial. Secondary evidence, if not objected to, is good, even against infant defendants, if they have been represented by counsel, and there does not appear in the record any evidence that their interests have been neglected.—See 1 Dan. Ch. Pr. 95; ib. 203-5; Tillotson v. Hargrove, 3 Mad. 495; Wall v. Bushby, 1 Bro. C. C. 488; Pearson v. Darrington, 32 Ala. 245; Mills v. Dennis, 3 Johns. Ch. 368; Knickerbocker v. Defreest, 2 Paige, 305.—But see Clark v. Gilmer, 28 Ala. 265; Johnston v. Shaw, 31 Ala. 594.

But how did the chancellor know, while pronouncing on the sufficiency of the bill of review, that his decision in the original cause had been made ex mero motu ? Evidently, he could not consult his own personal recollection. He was allowed to look only at the former record for information on which to act. To permit the chancellor, in such a case, to consult his own recollection, would be to lay down one rule for cases where the same chancellor presides at both trials, and a different rule where the two trials are had before different chancellors. Such a rule could not be sound.

But it is probable that the chancellor was legally and sufficiently informed that he had rejected the evidence without motion therefor, or objection to it. In obedience to the 71st rule of the chancery practice, a note of the testimony offered by each party was entered on the minutes. This note seems full and complete. The different parts of the testimony offered for complainant, are numbered consecutively, from 1 to 15. At numbers 7 and 9 the minute-entry says, “the introduction of which is objected to by the defendants.” To no other offer of evidence does the record show that any objection was made. We must conclude, then, that the other testimony was offered and produced without objection. Inclusio unius est exclusio alte-rius. The offer which probably relates to this subject, is in the following language : “8th — A transcript of a deed of assignment from Daniel McDougald to Jones and Alexander.” This note of the evidence, entered on the minutes, must be regarded as the act of the court; and we think it is open to examination, as part of the “proceedings,” on the question of error apparent.

But there is nothing in the opinion of the chancellor, or the decree in the original cause, which makes this “transcript of a deed of assignment” one of the facts proved, or which shows the existence and contents of such an instrument. All we know is, that a transcript of a deed was offered, and rejected, because it was not proved. We have shown above, that the chancellor was not permitted to look at the copy deed found in the record ; nor can we consider it, in determining whether there is error apparent. Strike that copy of the assignment from our view, and how will the record stand ? A transcript of a deed of assignment from McDougald to Jones and Alexander was offered. What were its contents and date ? The chancellor says, that the witness O’Neal testifies, that the copy appended to interrogatories propounded to him, “is the copy of an original recorded by him and Simeon O’Neal.” The chancellor adds, that he has no doubt that the copy spoken of by O’Neal “is in the same words and figures of that attached to the bill.” Now, if we admit that this contains a statement by the chancellor, as a fact proved, that the copy mentioned by O’Neal is a copy of the exhibit to the bill, it is clear that the statement of the chancellor does not affirm, as a fact found, that the copy spoken of by the witness, “is the copy of an original recorded by him and Simeon O’Neal.” His language is, that the witness testifies. This may be true, and' the chancellor may not have believed the testimony of this witness; or, his testimony may have been overborne by irresistible proof. The chancellor, as we have shown, could look only at the facts found — not the testimony which proved them.

But, leaving the transcript of the deed of assignment out of view, there is nothing left in the proceedings, opinion, or decree of the chancellor, which shows, or affirms, as a fact, that the transcript or record offered was a copy, either of the exhibit to the bill, or of the copy about which O’Neal testified. The exhibit to the bill is not even certified; its execution is not admitted in the pleadings, and there is, in the record, no statement that it is proved. The statement of the chancellor, in regard to the copy of which O’Neal speaks, is, that he testifies it was recorded — not that it is proved. The statement in regard to the “transcript” or “record” offered, not only fails to show it was proved, but rejects the paper, because it was not proved. Hence, we cannot know the date or contents of the transcript offered, nor that it was a copy of the exhibit to the bilí.

But there is another, and, if possible, more glaring defect in this feature of the case. The transcript, or record, (as it is indifferently called,) being left out of view, the record furnishes no evidence, which we can regard, that such transcript or record was certified by the clerk, or any other custodian of the deed, or of a registered copy of it. The only authentication of this transcript or record, which the chancellor mentions in his opinion, is in the following words : “The record has annexed what purports to be the copy of the certificate of Thomas M. Kemp, as a justice of the peace of this county, of the acknowledgment of the d.eed by McDougald before him.” Who made out the copy, called a record or transcript, or who certified it, if any one, we are left to .conjecture. Erom what is stated above, it will be seen that we discriminate between the two propositions, — first, that the deed was rejected by the chancellor ex mero motu, and, second, that it was rejected because it was secondary evidence. Of the first, we hold that he was sufficiently advised by the record. Of the second, he had no evidence which he could regard.

These reflections lead us to declare, that there was nothing legitimately before the chancellor, which enabled him to affirm that his former decree, rejecting the deed of assignment as not proved, was based on the theory that the evidence was only secondary. Erom anything that we can know, the paper offered bore no marks of authenticity; and offered no claim to be considered secondary evidence, nor, indeed, evidence at all. Although the chancellor, in his opinion in the original cause, gave some reasons which , were insufficient and unsound, there is nothing which shows that he erred when he declared that the execution of the deed was not proved. The present record does not present a case of error apparent which will uphold a bill of review.

[2.] The other ground on which the complainant seeks to have the decree in the original cause reviewed and reversed, is newly discovered evidence of the execution of the deed; proof which existed in time to be used in the original suit, but of which, it is alleged, the complainant had no knowledge. It is also claimed that the complainat has shown a sufficient excuse for the non-production of this evidence on the original trial, to bring bimself within the rule. We need not decide this question. The testimony newly discovered is parol proof — consists in swearing, and is cumulative. It relates to a fact or facts — the execution and last known custody of the deed — which were in issue, and were attempted to be proved in the former suit. The rule is inflexible, and rests in the soundest public policy, that parol cumulative testimony to á fact in issue in an original cause, cannot be the foundation of a bill of review. To allow such testimony would invite to the greatest abuse — nay, sometimes, to subornation of perjury; and would tend to almost endless litigation. Interest reipublicæ, ut sit finis litium. Caller v. Shields, 2 Stew. & Por. 423; Dexter v. Arnold, 5 Mason, 312; Rexpass v. McLanahan, Hardin’s Rep. 342; Livingston v. Hubbs, 3 Johns. Ch. 124; Her v. Routh 3 How. Miss. 292; Foy v. Foy, 25 Miss. 212; Love v. Blewit, 1 Dev. & Bat. 108; Head v. Head, 1 A. K. Marsh. 121; Norris v. LeNeve, 3 Atk. 36; Taylor v. Sharp, 3 Pre. Wms. 371; Willan v. Willan, 16 Vesey, 88; Young v. Keighly, ib. 351.

The wisdom of this rule is confirmed by the analogous principle in reference to new trials at law, on the ground of. newly discovered, cumulative testimony.—Watts v. Howard, 7 Metc. 478; Kirby v. Waterford, 14 Verm. 414; Den v. Wintermute, 1 Green, N. J. 177: Com. v. Flanagan, 7 Watts & Serg. 415; Fenin v. Protection Ins. Co., 16 Ohio, 147; Schlencker v. Risley, 3 Scam. 483; Smith v. Schultz 1 Scam. 490; Brown v. Stacey, 5 Pike, 403; Com. v. Murray, 2 Ashm. 41; Com. v. Williams, ib. 69; Robins v. Fowler, 2 Pike, 133; McGavock v. Brown, 4 Humph. 251; Tomlin v. Den d. Cox, 4 Harris. N. J. 76. See, also, 3 U. S. Digest, p. 578, § 718.

The decree of the chancellor is reversed, and a decree here rendered, dismissing the bill of review. Let the ap-pellee pay the costs in this court, and in the court below.

A. J. WALKER, C. J.

I agree fully with my brothers in the conclusion which they have attained, and assent to the judgment rendered. I concur also with all that is said by them upon the subject of newly discovered evidence, as a cause for a review of tbe original decree. Upon tbe question whether there is error apparent in tbe original decree, I prefer to give my own reasons, and not to commit myself to all that is said by tbe majority of tbe court.

Tbe imputation of error apparent rests upon an opinion expressed by tbe chancellor, in tbe statement of tbe reasons which influenced him to render tbe decree dismissing tbe bill. Upon the concession that tbe chancellor was in error, when be was led by his argument to tbe conclusion that be could not legally treat a certain paper as evidence, it follows that tbe decree was rendered for a wrong reason, but not that tbe decree itself was wrong. It is sometimes tbe case that correct judgments are rendered for erroneous reasons. Indeed, in this case, it does not appear that tbe chancellor would have rendered a different decree, if be bad entertained tbe opposite opinion upon tbe point of evidence. There are other questions in tbe case, tbe consideration of which might have led to tbe same result. Even tbe chancellor’s opinion in tbe original cause is not irreconcilable with tbe supposition, that tbe ground upon which be puts bis conclusion was' selected from a group, all having tbe same tendency and effect. It can not be affirmed, from tbe reading of tbe chancellor’s opinion, that there were not several other bnes of argument, approved by him, which would have conducted him to tbe conclusion expressed, and which be omitted to state, only because tbe one mentioned was entirely satisfactory to him, and was deemed capable of easy vindication. It would, therefore, be as unreasonable as it is unprecedented to pronounce tbe decree of tbe chancellor erroneous, because tbe reason given by him for that decree was incorrect. Error in tbe decree itself is indispensable to a reversal on appeal. On bill of review, there must not only be error in tbe decree, but tbe error must be “apparent.” An assignment of error, that tbe chancellor’s opinion was wrong, would be disregarded, even on appeal. There can be no reversal of a decree, merely because tbe chancellor has erred in tbe reason given for it.

Aside from tbe reason upon which tbe chancellor put bis decree in tbe original cause, that decree was right, if tbe bill was materially defective, or if any valid defense set- up in tbe answers was sustained by tbe proof, or if tbe material allegations of tbe bill were not established. Before it could be ascertained that tbe decree was erroneous, it would be indispensable to examine and weigh tbe evidence in tbe cause, a large mass of which was produced on tbe trial. This cannot be done on bill of review. If it could, tbe distinction between appeals and bills of review, as remedies' for errors, which is carefully kept up in tbe law-books would be destroyed.—Perry v. Phillips, 17 Vesey, 173’ Caller v. Shields, 2 St. & P. 417; Bradshaw v. Garrett,; 1 Porter, 47; P. & M. Bank v. Dundas, 10 Ala. 661.

Some modification of tbe English rule, as to what parts of tbe record may be examined on tbe bill of review, has obtained in this country; but it is still maintained that tbe evidence can not be examined and weighed for tbe purpose of testing tbe correctness of tbe decree.—Dexter v. Arnold, 6 Mason, 303; Story’s Eq. Pl. § 407; Tomlinson v. McKaig, 5 Gill, 256; Mitford’s Eq. Pl. (Am. ed. 1849,) 83-84, n.; 4 Bouvier’s Ins. § 4125; 3 Dan. Ch. Pl. & Pr. 1727; Caller v. Shields, supra; P. & M. Bank v. Dundas, supra; Webb v. Pell, 3 Paige’s Ch. 368; Whiting v. United States Bank, 13 Peters, 14.

That cannot be an “ error apparent on tbe face of tbe decree,” or an “error appearing or arising on tbe body of the decree,” (as it is variously expressed,) which can only be discovered by an examination of tbe evidence and tbe determination of its weight and credibility. Tbe correctness of the decree is always tbe question. A decree can never be reversed for an antecedent error, unless tbe erro-neousness of tbe decree itself is a legal sequence of such error. Tbe erroneousness of tbe decree, here, was not a legal sequence of the chancellor’s opinion as to tbe question of evidence; and tbe decree ought not to be reversed, because that opinion may be considered wrong. That tbe decree was wrong, could only be affirmed upon an inquiry, which cannot be made upon bill of review; and, therefore, a bill of review can not, in my opinion, be sustained, for error apparent in this case. If it could, we might have tbe absurd consequence of a chancellor’s being compelled to reverse a decree on bill of review, because a wrong reason was stated in the opinion, when it was plainly seen that the decree was right; and this court might be required to do the equally absurd thing of approving a reversal for error apparent in an original decree, which decree it would have affirmed on appeal. No court, on appeal, or bill of review, can, consistently with justice and right, or with the law, as I understand it, deprive a party of his decree, unless it can be affirmed, upon legal principles, that the decree was wrong. To reverse for an error of opinion, where the rightfulness of the decree does not depend upon it, would make a party responsible for that which he had no agency in procuring, and no power to prevent, and which may have been done in despite of his protestations. If a decree is reversible for mere error in the reasons given, it would be far better that chancellors should abandon the wholesome and commendable practice of filing written opinions; for they will add to the uncertainties of the law, and cumulate the chances of reversal.