
    Joel Mead vs. Jonathan Arms.
    Washington,
    March, 1830.
    Where a party seeks relief against a decree of a court of chancery on the ground of having discovered new evidence which came to his knowledge after the decree was pro'nounced, or after publication passed, and which could not have been used in the cause at the hearing, he must obtain it cither by a bill of review, when the decree is signed and enrolled, or, when the decree is not signed and enrolled, by ct supplemental bill in the nature df a bill Of review.
    1’lie discovery of new evidence, or new matter, is nota ground for a petition for a rehearing in chancely.
    This was a petition to the court of chancery brought by Jlrms for a rehearing in a cause in which there had been a decree against him in favor oí Mead. The petitioner prayed for a rehearing on the ground that, since the trial of the cause, he had discovered new and material evidence not known to him before. The petition also disclosed other grounds on which he insisted a .rehearing ought to be granted, The petitionee demurred to the petition, and assigned for causes that the introduction of said new evidence mentioned in the petition, made a new case different from the one tried by the court; that no new witness could be examined on a rehearing of the cause as to any matter in issue, and not proved on the trial; and if such evidence betaken it could not be used ; and that the affidavits of the new witnesses were not attached to the petition.
    The cause was argued by O. H. Smith, for the petitioner, and by Mr. Baylies for the petitionee.
   The opinion of the Court was delivered by

Williams. J.

This is a petition for a rehearing of a cause in chancery. The petition is demurred to because it discloses new discovered evidence as the ground of the application ; and the question is whether it is a sufficient reason to grant a rehearing that a party has discovered new testimony which was unknown to him at the time the decree was pronounced. This is altogether distinct from the question, whether, if a rehearing is granted, the court may not enlarge the order of -publication, so as to admit further testimony if the equity of the case should so require.

The principal importance attached to this question is as a question of practice; and in that view it is of some consequence that no rule of practice should now be introduced which would have the effect of creating any further delays in our chancery proceedings, unless the ends of justice imperiously require it. Nor can we adopt all the rules of practice in the courts of chancery in Great Britain, or in our sister states, where they have a separate court of chancery. Our court sits but once in a year in each county, and but one week is allowed for all the law and chancery business in that county. In the courts of chancery in England it is almost a matter of course to grant a rehearing on the certificate of two respectable counsel, that it is a case proper to be reheard, andón the rehearing all the testimony taken in the case may be read. But I apprehend this certificate is upon the case as it was heard, and that the discretion of the chancellor is exercised upon the case which has been before him, and which was once heard, and is usually upon a suggestion that the law or the fact, or .proof upon which the decree was made, was mistaken. — Ca. Ch. 54. The form of the petition given in Harrison’s Chancery seems to countenance this idea. If it is so far a matter of doubt whether the proof or fact was not mistaken, that two counsel will certify that it ought to be reheard, and the chancellor thinks the party ought to be indulged with a rehearing, it is granted. No case has been produced, and I have been unable to find any, where additional or new discovered testimony which will make a point clear that was doubtful, or will make a new case,, lias been made the ground for, allowing a rehearing. If this was to be indulged, the hearing on the application for a rehearing would be as intricate and perplexing as a hearing upon the original case, and in fact would be hearing the cause anew. If the party petitioning is to be indulged by introducing new testimony, the party opposing should have the same indulgence; and the application for a rehearing would be but a hearing of the original cause upon further testimony, to be reheard again upon still further testimony, if the application should be successful. We believe the whole course of proceedings both in law and chancery is opposed to such a course. In courts of law a new trial is rarely granted for new discovered evidence, and in no case, as far as I -can learn, has a rehearing been granted in chancery for that cause.

After publication there is no further testimony taken unless by order of court, and there can be found no order, form, or direction, for taking testimony after a decree pronounced, preparatory to a hearing of a petition for a rehearing. There is no precedent or dictum which authorizes the hearing of an exparte affidavit of a witness in any stage of chancery proceedings. In a case found in 4 Viner, 408, it is said “ that if the chancellor err in his decree upon matters of fact, the decree is final and cannot be reviewed because they cannot go into a new examination of u witnesses now, for after publication this cannot be done. But if the chancellor errs in his conscience upon a matter of fact “ proved before him, there may be a review upon this matter, because there needs no new examination ; but this may be reviewed upon the old depositions, and this is usual.” In the marginal note to these cases k is stated that on a bill of review the fact must be admitted as stated in the decree, although that fact was mistaken, but it is added “in mistaking, the proper course had been to have gotten the case reheard,” and a number of ancient cases are quoted in support of it. It is also added, “ that no bill of review is admitted on new matter; and cites Cary's Rep. 82; 3 Jac., Lovegrace vs. Webb. It may be noticed that there are notes of ancient cases in the lime of James I., and I should think from them that at that time there was no way by which advantage could be taken of new matter discovered after the hearing or decree pronounced. The observations of Sergeant Maynard in arguing the case of Barbor vs. Stearle, 1 Vernon, 416 and the case of Chambers vs. Greenhill, 2 Ch. Rep. 66, and 3 Ch. Rep. 76, 77, would lead us to this conclusion. After bills of review were allowed for the purpose of bringing new matters before the court, this distinction was taken, that when a matter in fact was particularly in issue at the former hearing a bill of review was not allowed upon new proof of that matter. But when a new fact is alleged that was not at the hearing, then it may be a ground for a bill of review.—4 Viner, 408, cited from Freem. Rep. A bill of review cannot now be brought in the court of chancery in Great Britain upon the discovery of matter after the decree was pronounced, except by leave of the court granted upon petition ; and they will judge on such petition whether there is any foundation for such leave.—1 Harrison, 170, 171. If upon a bill of review or a supplemental bill in the nature of a bill of review, (which is the regular way of bringing matter newly discovered to the consideration of the court,) the leave of the court must be first obtained upon petition, it would appear singular if the party could avail himself of the new discovered matter or evidence to much greater advantage on a petition for a rehearing. In the case of Standish vs. Radley, 2 Ath. 177, where the party had discovered new and important matter since the pronouncing the decree against him, he availed himself of it by bringing a supplemental bill in the nature of a bill of review, and a petition of rehearing to rectify the former decree in the particulars complained of. And in 2 Maddock, 485, a case is cited from 17 Vesey, and this position is deduced from it, that if the objection to a decree is a mistake in law to be collected from all the pleadings and evidence, it is a subject of rehearing, unless a supplemental bill is necessary to introduce new facts, in which case the cause will bo heard upon the matter of the supplemental bill together with a rehearing of the original cause. If the course attempted by the petitioner in this case is correct, the supplemental bill was unnecessary in both cases above referred to.

It was formerly the rule that no proof could be read at a rehearing that was not read at the hearing.—2 Eq. ca. ab. 491. In Jones vs. Purefoy, 1 Vernon, 47, where a rehearing had been granted, new proof was rejected by the chancellor, Finch, who,, it is said, “ took notice of what dangerous consequence it would be,, “ that if after publication passed, and people knew where a cause pinched, they should be at liberty to look up witnesses to-" bolster up the faulty part of their cause.” It is not, however, of any consecquence, that we should consider this question, to what extent at a rehearing new proof may be introduced, whether any thing further is permitted than depositions taken and omitted to be read,or papers since found, or testimony to the incompetency of a witness, (and Chancellor Kent thinks the rule extends no farther,—6 John. Ch. Rep. 253,) as this inquiry is not involved in the present inquiry before the court.

O. H. Smith, for petitioner.

Baylies, for petitionee.

In the case of Wood vs. Griffith, 1 Merrivale, 25, a petition for a rehearing was ordered to be taken off the files on the ground of its making a different case from the one on which the decree was pronounced; and in the case of Mussell vs.Morgan,3 Brown, C. C., Lord Thurlow dismissed a petition to set aside a decree for fraud, supported by affidavits, and observed that he could see no reason why it should not be by original bill in the nature of a bill of review, and further said, “ either there is enough before the court already for it to determine upon, or'there is not; if there is, it may be done by a rehearing ; if not, the new matter must be brought before the court.”

From an examination of all the authorities, we are of opinion that where a party seeks for relief against a decree on the ground of his having discovered new matter which came to his knowledge after the decree, or rather after publication passed, and which could not have been used in the cause at the hearing,he must obtain it either by a bill of review when the decree is signed and enrolled, or, when the decree is not signed and enrolled, by supplemental bill in the nature of a bill of review. And further, that 'the discovery of new matter or new evidence is not a ground for a petition for rehearing, and 'that it would be extremely injurious and productive of great irregularity and fraud to introduce a rule of practice which would warrant such a procedure. As, however, there are other grounds disclosed in the petition as a reason why a rehearing should be had, (and we may here remark that it is proper to disclose in the petition the ground on which a rehearing is prayed for,) we are not disposed to dismiss the petition, but order that the petitioner expunge from his petition all that part of it which refers to new discovered testimony as the ground of obtaining the relief prayed for. The petition will then remain for a further hearing.  