Cochran v. Rison

DARGAN, C. J.

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No question has been made as respects the parties to this bill, neither in this court, nor in the court below; and we will therefore pass to the consideration of such questions as grow out of the assignments of error.

1st. Does the bill set forth such matter as will warrant a bill of review? The main ground on which it is filed is the written agreement, by which the plaintiff in error stipulated that, in consideration of $400 paid by the complainant to him, he would proceed no further in the original suit against this complainant to coerce payment from him of the liability sought to be enforced by the original bill, but reserved to himself the right to proceed against his co-partner.

This agreement was entered into, not only after publication had passed in the original cause, but after a reference had been made to the master, and he had prepared his report, to which exceptions had been filed, and only a few days before the cause was to be heard on the report of the master. As the cause then stood, this agreement could not have been brought before the court at the final hearing, and unless it can be brought forward by bill of review, the complainant can derive no benefit from it. I think it clear, that it forms the proper subject matter for a bill of review. The rule is, that if the new matter has arisen, or -been discovered, after publication has passed, it may be brought forward by way of bill of review. Story’s Eq. Pl. § 413; Livingston v. Hubbs, 3 John. Ch. R. 124; Dexter v. Arnold, 5 Mason, 303.

2d. It may also be objected, that the original decree sought to be annulled and reversed has not been obeyed and performed by the complainant. But this objection could not be raised by a general demurrer, even in England, where the general rule was, that the decree must be performed, before a bill of review could be allowed. This, however, was but a general rule, and was often dispensed with. Daniel’s Ch. Prac. Vol. 3, 1726. And in the case of Savill v. Darrey, (1 Chan. Cases, 42) the objection being taken after the bill was filed, the chancellor allowed the complainant to give security for the payment of the sum awarded by the original decree, and to proceed with the cause. This shows, that if the objection had been made in the court below, the bill itself would not have been considered defective, but that the complainant might have been allowed to give security to perform the original decree, and then to have proceeded. Indeed, this objection can go, only, to the propriety of filing the bill, and not to the equity of the bill when filed.

But, independent of this, under our statute, the chancellor has the right to direct the decree on the original bill to be staid in such manner as he may deem advisable, or he may allow the bill to be filed, and let the complainant proceed with the execution of the decree in the original cause, (Clay’s Digest, 350); and in the case at bar, by a restraining order, he enjoined the execution of the original decree. Had the objection, therefore, been made in a proper manner, and at the proper time, it could not have prevailed; but it is self-evident, that it could not be successfully urged in this court, by means of a general demurrer to the’ bill.

The answer admits all the material allegations of the bill, and the sole question, therefore, is, whether the bill warrants the decree that was rendered. Without undertaking to say what influence this agreement would have, between the plaintiff in error and Joseph Caruthers, the copartner of the complainant, we think it clear, that it is bidding, as between the complainant and defendant. There was neither fraud nor misrepresentation in its execution, and Cochran had a full knowledge of the condition of his original suit at the time he entered into the contract. It therefore binds him, and the chancellor did not err in the decree that he rendered.

LIGON, J. having been the chancellor who pronounced the decree in the court below, did not sit in this cause.