Ex parte Monteith , 1 S.C. 227 ( 1869 )

The opinion of the Court was delivered by

Moses, C. J.

It is not necessary to consider, under the petition, whether a bill of review, or a bill in the nature of a bill of review, will be entertained in this State for error in lav/ apparent on the face of the decree.

It is sufficient, for the disposition of the motion which assumes such jurisdiction, for this Court to show that the ground on which it is claimed does not exist in the case, and that, on familiar rules, in regard both to the principles and practice of equity, it cannot be granted.

The bill was filed for the foreclosure of a mortgage of certain real estate, given to the plaintiffs by the testator of the petitioner, to secure the payment of several bonds executed to them by him.

No appearance was entered, or defence submitted, and there was nothing before the Court but the case as made by the bill and exhibits.

The petitioner cannot complain if it is conceded on her behalf that the bonds were usurious on their face. Pier allegation is, that there was error in law apparent in the decree, by reason of that fact.

The bond, under the Act of 1830, (6 Stat. at Large, 409,) was not void. If the petitioner (then the defendant) desired to avail herself of the plea of usury, and thus reduce the recovery to the prinT cipal sum loaned or advanced, she should have so framed her de-fence as to have brought that question to the view and decision of the Court.

The Chancellor is not bound to set up a plea for a party who neglects or declines to do it for himself. Where, then, is the error in law apparent on the face of the decree under the case as made ?

In Trulock vs. Robey, 15 Simons, 38 E. C. R., 279, it is said that, in support of a bill of review for error in a decree, the pleadings cannot be referred to. Suppose, however, we extend the rule here, and permit the petitioner to bring the pleadings to the view of the Court, how will it aid her in the purpose she now seeks ?

Extrinsic evidence cannot be introduced, nor will the circumstance that, on a bond of like character to which the defence of usury was in due form made, relief was granted, be of avail to show that there was error of law in the decree in the case against her.

There is, however, another objection which is fatal to the party. It is admitted that she subjected herself to a decree pro confesso, and it is claimed that, had she presented her defence, the result would have been, as in the case of Bollinger ads. the same plaintiffs, (12 Rich. Eq., 124,) a decree in her favor.

Where one loses his suit by his own neglect, he cannot be aided by a bill of review. — McMickens, Exr’s, vs. Crossman and al., 22 How., 282. This is founded on a well recognized principle. A party must not stand off, risk the chance of litigation, and, if, perchance, the result be against him, seek a review of a judgment to which his laches has contributed, and which a regular course of defence might have averted.

We have anxiously examined the case, to ascertain if anything could be found to authorize the relief sought. While, with the Chancellor below, we regret that the petitioner did not pursue the course which might have saved her from loss, we are obliged to dismiss the motion.

Willard, A. J., concurred.