Burch v. Scott , 1 G. & J. 393 ( 1829 )

Stephen, J.

delivered the opinion of the Court.

Considerable difficulty has been felt in coming to a decision in this case, which involves principles of practice not of very frequent occurrence, and which affect in a high degree, the regular and ordinary administration of equitable jurisprudence. It appearsby the proceedings in the court below, and which have been brought up here on appeal, that a controversy exists as to the right of property in certain negroes, or the proceeds for which they have been sold, between the representatives of Jesse Burch, and those of a certain Kinsey Gitlings. To recover these proceeds and to have a distribution made among them, the representatives of Burch filed their bill of complaint in the Court of Chancery, on the 14th day of July, 1823, against William Scott, one of the appellees, as the administrator of said Gitlings, in which bill they also pray for an injunction, to prevent Scott from paying over, or in any manner parting with the proceeds of sale until the final decree of the court.

The Judge here referred to the proceedings in the Court of Chancery before set forth, includingjhe decree of the Chancellor, and then continued.

Upon the propriety of this discision this court are now called upon to decide. As a bill of review to reverse the decree of the Chancellor, for error apparent on the face of the decree, it cannot be available for the complainants. The error which will reverse a decree upon sucli a bill must appear in the body of the decree itself. Wyatt in his Practical Register, page 94, slates that a bill of review is to examine and reverse a former decree upon error of law appearing in the body of the decree itself, without averment or further examination of any matter of fact before the decree, or of any matter resting upon record, which might'have been had at the time of the decree—so in page 98 of the same book, he states the principle to be that upon a bill of review, the party cannot assign for error, that any of the matters decreed, are contrary to the proofs in the cause; but must shew some error appearing in the body of the decree, or new matter discovered since the decree made. So in Catterall vs. Purchase, 1 Atkyn’s Rep. 290, the Lord Chancellor observed it is true on arguing a demurrer to a bill of review nothing can be read' but what appears on the face of the decree, but after the demurrer is over ruled, the plaintiffs are at liberty to read bill or answer, or any other evidence, as at a rehearing, the cause being now equally open. To the same effect see Cooper’s Pleadings in Equity, page 89, Mitford, page 178. Taylor vs. Sharp, 3 Peere Williams, 371—If a decree be obtained and enrolled, so that the cause cannot bé reheard upon a petition, there is no remedy but by bill of review, which must be upon error appearing upon the face of the decree, or upon some new matter, as a release, or a receipt discovered since— Wyatt. P. R. page 98. When a bill of review is brought for error apparent, according to the English practice, the usual method is for the defendant, to put in a plea, and demurrer; a plea of the decree, and a demurrer against opening the enrollment; so that in effect a bill of review cannot be brought without having the leave of the court in some shape; for if it be for matter appearing in the body of the decree, then upon the plea and demurrer of the defendant to the bill the court judges whether there are any grounds for opening the enrollment; if it be for matter come to the plaintiffs knowledge after pronouncing the decree, then upon a petition for leave to bring a bill of review, the court will judge if there be any foundation for such leave, Wyatts P. R. page 99. ' The defendant generally puts in the usual demurrer, that there is no error in the decree. He rarely or ever answers unless ordered thereto by the court, and the demurrer being set down to be argued, the court proceeds to affirm or reverse the decree, and the prevailing party takes the deposite, ^(a) same book, same page. In the case now before this court, the defendants have thought fit to desert the usual course of proceedings, according to the above practice, and have put in their answer instead of demurring. But upon a bill of review for error apparent no distinction has been discov, ered, between an answer, and a demurrer, because in both cases the court will judge whether there be error in the body of the decree. Upon examining the] decree in this case, it does not appear to this court, that there is any error in law apparent upon its face, nor can the bill be supported upon the ground of new matter discovered since the decree, because such new matter must be to prove what was before in issue, and the leave of the court must be obtained before a bill of review can be filed on this ground, and which the court will not grant, without an affidavit that the new matter could not be produced or used by the party claiming the benefit of it at the time, when the decree was made. No such new proof is alleged in this case to have been discovered since the decree was made. Cooper’s Plead, in Equity, page 91. A supplemental bill in the nature of a bill of review, for want of proper parties will not be available, after a decree has been signed and enrolled. See Wiser vs. Blackly, 2 Johnson N. Y. C. Rep. 488. Cooper’s Equity Plead, page 94, where a decree is impeached on the ground of fraud practised in obtaining it, the fraud must be established by proof, before the propriety of the decree can be investigated, same book, page 97. There is nothing in this case by which it can be sustained upon the ground of new matter discovered since the decree, for such new matter as already remarked, must be something tending to prove what was in issue between the parties. Cooper’s Equity Plead, page 91, and where either a bill of review after enrollment, or a supplemental bill in the nature of a bill of review before enrollment are brought upon the ground of such discoveries, the leave of the court must be obtained, which the court will not grant without affidavit that the new matter could not be produced or used by the party claiming the benefit of it, at the time when the decree was made. Cooper's E. P. pages 91, 92, 93, 94. Wyatt's Chancery, 98,99. As to the question, when a decree of the Court of Chancery of this State is to be considered and taken as enrolled, we consider it to be clothed with that solemnity, when it is signed by the Chancellor, and filed by the register, and the term has elapsed during which it was made. The only question which remains to be considered is, whether it is consistent with the salutary and wholesome exercise of that sound discretion, which it is admitted the court possesses upon subjects of this nature, to open or discharge the enrollment and vacate the decree, in this case for the purpose of enabling the defendant to make his defence. Upon' full and mature deliberation, we are Of opinion that it is not. We consider that the establishment of such a lax principle of practice would be productive of the most deleterious consequences, in the administration of equitable jurisprudence, by the tribunals clothed with Chancery powers in this State. After being repeatedly in contempt by disregarding the solemn, process of-the court, the complainant makes his present application rather with an ill grace. In Wooster vs. Woodhull, 1 Johnson N. Y. C. R. page 541, the Chancellor says, “thé interference of the court to relieve a party from the consequences of his default must depend upon sound discretion, arising out of the circumstances of the case. There is no. general and positive rule on-the subject; and LordThurlow observed in one case, ( Williams vs. Thompson, 2d Bro. 279,) that if a defendant comes in after a bill has been taken pro confesso, upon any reasonable ground of' indulgence and pays cost, this court will attend to his applica- “ tion, if the delay has not been extravagantly long. If the indulgence be great and frequent, there is danger of abuse of the precedent, for the purposes of delay. According to the-opinion of Lord Hlrdwicke as stated in this case, the question in such cases is, on which side the greatest inconvenience would lie ? Testing the propriety of granting the present application by that principle, and but little doubt can exist as to the fate which ought to await it. On the one hand if granted,™ the complainant might gain an advantage which he has lost by his own repeated contumacy and gross negligence; on the other hand instead of a regular and speedy administration of justice by a prompt and respectful attention to the process and jurisdiction of the court, they will be disregarded and disobeyed, whenever a respondent could thereby gain an advantage, to the great reproach of the law, and the most serious delay in the judicial dispensations of justice. On these grounds it is conceived, that the Chancellor erred.

DECREE reversed.

(a) A sum formerly deposited in court as a security, to satisfy costs and damages for delay, if the matter should he found against the party who preferred such bill. Wyatt’s P. R. 51, ed. of 1714.