
    Heirs of Ludlow v. Kidd’s Heirs and others.
    In bill of review, the original bill, answers, exhibits, and depositions are open, for examination where the decree contains no statement of the facts found or principles decided.
    Persons interested in the subject, though not parties to the original bill, made-parties to the bill of review; and where decree is reversed, the bill of review, as to new parties, retained as a supplemental bill.
    This was a bill of review, adjourned for decision here, from the Supreme Court of Hamilton county.
    The case was this: Israel Ludlow died in Hamilton county in the year 1804, leaving four infant children, and a large real estate. Among this was the lot No. 401, in Cincinnati, the legal title to-which had been obtained by John Kidd and Joel Williams. To-obtain the conveyance for this lot, the infants prosecuted a bill, by their next friend, against Kidd and Williams. The case was-strongly litigated, and a mass of exhibits and depositions introduced into the cause. In 1817, the Supreme Court pronounced a. general decree of dismissal, containing no recital of the facts considered as proved, or of the principles of law upon which the dismissal was grounded.
    After this dismissal, the lot was disposed of, in different modes, by Kidd and Williams, and had passed, in separate *parts, into different hands. Kidd and Williams having both deceased, and the heirs of Ludlow attained their lawful age, they prosecuted this bill of review to procure a reversal of the decree pronounced against them, and obtain the original object of their bill.
    In this bill of review they recited the substance of the original bill and answers, of the exhibits and depositions, and set forth the decree of dismissal. They made the heirs of Williams, the devisees of Kidd, and the persons now holding the legal title, defendants, charging them with notice.
    The bill prayed a review and reversal of the decree against the complainants, and a decree for the legal title against those holding it. To this bill the defendants put in a general demurrer, upon which they maintained;
    1. That in a bill of review nothing could be looked into but the decree itself.
    2. That upon the case made the decree was correct.'
    The case was elaborately argued by Hammond and Storer for complainants, and by Fox and N. Wright for respondents. But as the decision upon the first point only is to be reported, it is only necessary to state so much of the case, and insert such part of the arguments as are necessary to understand that point alone;
    N. Wright, in support of the demurrer;
    On a bill of review for errors in law, the court can not inquire into the sufficiency of the proof of any fact; but the original decision of the court upon the effect of the evidence to any disputed fact, must be now taken as conclusive and binding.
    It is a principle familiar to every one, that a bill of review can be brought only for errors in law, or for newly discovered testimony. 2 Johns. Ch. 491; 2 Munf. 309; 16 Ves. 348, 350, 398; 17 Ves. 173; 3 Johns. Ch. 126; 4 Hen. & M. 242; 2 Ball & B. 146; 1 Har. Ch. 141, 142, 452; 1 Vern. 166, 292; 2 Eq. Cas. Abr. 173, 177, 1, 81; Coop. Eq. 89.
    The two classes of cases are entirely distinct, and so treated in all the books. And the same rule is distinctly ^recognized .in the statute of this state of February 19, 1810, regulating pro» ceedings in chancery in force when the original proceedings were had. 14 Rev. Stat. 184, sec. 63.
    The distinction between an error in law and an error in fact (or rather a mistake of fact) is perfectly obvious. If, from the evidence adduced, the court are of opinion that a particular fact exists, when in reality that fact does not exist, it is an error in fact; and for such an error no bill of review will lie unless upon newly discovered testimony. The only remedy for such an error is a. rehearing, and a different rule would utterly destroy the distinction between review and rehearing.
    It is a universal principle of all jurisprudence, that all facts once decided, shall not be again inquired into, unless in the special manner pointed out by law. All testimony is fallible and perishable ; to allow parties, after a lapse of time, and the casualties to which all testimony is subject, to have a reinvestigation of a fact once proved and settled, is dangerous in the extreme. It. opens a door for imposition, for taking advantage of the death of witnesses, the loss or destruction of papers, and the fickleness or-dishonesty of witnesses.
    The rules of new trials at law are strongly analogous. There the only method of re-examining facts is by an immediate application to the court; if the facts are preserved by means of a bill of exceptions, the law arising upon them may be re-examined; but there is no proceeding known by which those facts can be disputed on the record.
    So in chancery the same distinctions are preserved; the law arising on the facts is a matter of review. But is it not absurd to ■ ask this court again to weigh a volume of testimony, and reconsider whether they have rightly estimated its importance? Even the opinion of a jury, once given, is treated as conclusive; and are-the court more fallible than a jury?
    In Combes and Proud, it is said, “ that although the facts on which the court gave judgment were mistaken, yet there is no-ground for a bill of review, after a decree enrolled, but the facts must be admitted true.” 2 Free. 182; cited 2 Eq. Cas. Abr. 174.
    *It is said to be an early and uniform rule in chancery, “that no bill of review shall be admitted, unless it contain either error in law, appearing in the body of the decree, without further examination of the matters of fact, or some new matter arising after' ■the decree, and not any new proof, which might have been used when the decree was made.” Coop. Eq. 89; 3 Atk. 26.
    Chancellor Kent repeats the same doctrine. 2 Johns. Ch. 491; 3 Johns. Ch. 126.
    And it is recognized in all the cases first above cited, and a host of others to which reference may be made. Indeed, it is a most •obvious dictate of common sense. The bill professes to be founded upon errors of law, not of fact. The object of writs of error and bills of review is to render legal decisions uniform, to provide that the law shall not be differently administered by different tribunals, but shall be a certain and settled rule; not to inquire whether a witness is perjured, or whether this man or that is entitled to the greater credit. Apply the above rule to the present • case. The error assigned is, that the decree should have been for the complainants instead of the defendants. To this error they .are confined, for no error can be examined but what is assigned in the bill. Coop. Eq. 95; 1 Har. Ch. 140; 2 Eq. Cas. Abr. 175. What are the facts in the case, from which the law would be in favor of the complainants? It is not stated in the proceedings what facts are taken by the court as proven; and here we might stop, there being no facts stated, showing on the record an erroneous deduction of law from facts, there is no error appears; and the complainants stand in the situation of a party who complains of an illegal decision of court upon certain testimony, but has failed to make that testimony part of the record, by bill of exceptions.
    The rules laid down in the books appear to support this position.
    But the chancery act, before referred to, provides for recording the statement of facts, and the testimony taken down by order of •court, and may, perhaps, extend to embrace all the testimony taken in the case, making it a part of the record; and I am willing to consider the depositions *recited in the bill as a proper subject of examination. The practice which has prevailed under our statute, has been not to set forth the facts which are ascertained from the evidence as the foundation of the decree, but to leave them to be inferred from the recorded testimony. Viewing the case in this manner, and applying the same principle, what must be the result? The court (and so is the distinct language ■of the statute) can review only errors of law, in a case like the present. They can not, they have not the power to review matters of fact, or to reverse the decree, because they have erred in finding a particular fact from the evidence. They are confined to the law arising upon the evidence. They must, therefore, look into the depositions in the same manner that they would in any other case, if called upon to decide the law arising upon evidence; in other words, precisely as on a demurrer to evidence at law. The complainants say, that on this evidence there could not by law be a decree against them. This is strictly a demurrer to evidence, and the rules in that case are clearly applicable.
    “A demurrer to evidence must admit the truth of all facts which the jury might find in favor of the other party, upon the evidence laid before them.” 1 Phil. Ev. 216.
    And this extends to every inference which the jury might fairly have drawn from the evidence. To every presumption which, on a reasonable construction, could arise from it. 4 Cran. 219; 1 Johns. 241; 5 Id. 29; 3 Bin. 457; 2 Wash. 203.
    So, in the case now before the court, in deciding whether a decree, not erroneous in law, could be made upon the evidence, every fact fairly inferable from the evidence must be admitted. There is no other possible manner of considering the case without reviewing as well questions of fact as questions of law.
    If, therefore, there was any fact at issue, the existence of which would warrant a decree for the defendants, and the existence of that fact can by any reasonable inference be deduced from the evidence, the decree will not be reversed. In every case of contradictory evidence, the fact, of course, must be presumed in favor of the decree.
    *There are two facts (to say nothing of the others) strongly supported by the testimony, either of which, being found for the defendants, the decree must have been in their favor :
    1. That J. C. Symmes, when he sold the fraction to Denman, reserved a lot to be located at his election.
    2. That Ludlow subsequently relinquished to Symmes the lot in question.
    At that period, there being no statute of frauds in the state, a parol contract relating to lands was valid, and gave Symmes a clear equity paramount to Ludlow, the very agent with whom the agreement was made; and it appears from the phraseology of the decree, that it was rendered upon this point, as it declares the equity to be with the defendants.
    
      There are various principles of law which support the doctrine' stated above.
    Every presumption is in favor of the correctness of judicial decisions. It is always- presumed that they are correct, unless the contrary appears. The error must be manifest, or there is no error. On this principle solely, rests the verity attached to all judgments and decrees. The evidence to justify them is always presumed unless the contrary appears.
    The special provision by statute, as well as by practice, for a rehearing, precludes the idea of re-examination of fact on a bill of review. A rehearing is understood by every lawyer to embrace fact as well as law ; but it is specially confined to a short period of time and certain rules: what propriety in such rules and restrictions, if a review answers the same purpose ? And if facts can be re-examined on review, no possible distinction can be pointed out between the two proceedings.
    The rule for which I contend is in harmony with all other judicial proceedings; at law, facts once settled are never disturbed; the judgments of law being once passed upon them, there is no possible mode of again canvassing them while the judgment remains. Chancery practice evidently rests upon the same principles and distinctions. Here is the rehearing in place of the new trial at law;. and the bill of review in place of the writ of error. The practice is ^founded in both upon great principles of public policy. Interest revpublicce ut sit finis litium. And surely there would be no end to litigation if the court could be required, after ten or twenty years, to canvass over again a volume of testimony, and decide whether they now receive the same impressions from it, as they did ■on the first investigation.
    Stoker, for complainants:
    The point taken, that the errors in law, on which the prayer fora review is predicated, must appear on the decree, and can not be asserted of any fact proved in the cause, we admit to be the settled doctrine of the books. But this admission, however, is accompanied with our views of what a decree in chancery must contain, under the practice in England, as well as what the statute of this state, in force when the suit was determined, required to be inserted in the record.
    Wo contend that a final decree, under the English practice, must-contain a full statement of all the facts on which the chancellor's decision is founded. The manner in which proof is made of these facts need not specially appear; but it is essential that satisfactory evidence of their existence should be embodied in the decree. If the mere opinion of the chancellor, on the merits of the cause, is the only part of the case on which error could have been assigned, all examination of the complainant’s bill, and of course his right to sustain it, would have been excluded; and it would seem that the technical rule contended for by the defendant’s counsel in the present case would produce that gross absurdity, that a court of equity may entertain jurisdiction in any case, no matter how palpably unjust, and no subsequent investigation can be had, provided the decree contains any grounds that would seem to warrant the interference of the chancellor. The history of a bill in chancery, from its inception to the enrollment of the final decree, will, it is believed, furnish no argument against the position we have assumed. In fact, the extreme caution that is exercised in obtaining all the light that can be shed on the cause, by a reference to a master, and issues directed to be tried at law, to say nothing of the opportunities afforded to object to the ^master’s report, as well as to move ' for a new trial, while it affords strong reasons against the propriety as well as the policy of re-examining the facts on which a decision has been made, it nevertheless would seem to require that every material fact proved should be contained in the decree. The rules on this subject are very fairly detailed in Hinde’s Ch. Practice, 429, and 1 Harrison’s Ch. 418. These two writers have treated the matter more perspicuously than any modern author. If the point contended for is correct, let us examine for what errors in the decree a bill of review may be sustained.
    In 1 Hai’rison’s Chancery, 452, 453, it is said, “ and yet if the chancellor errs in his conscience, upon a matter of fact proved before him, there may be a review of this matter, because there needs be no new examination, but this may be reviewed on the old depositions, which is usual.” To this point, 1 Roll. Abr. and Chancery Cases, 45, are cited.
    Before, the strict rule, which now obtains in England, that the decree must present a history of the'case, with the facts proved to warrant the chancellor’s decision, it sometimes happened that decrees were very loosely drawn, and many material points of evidence omitted. The question, as might have been expected, arose how far the unsuccessful party was precluded from a resort to his remedy, by review, by such decrees, and the same argument was then urged, that we would now press upon the counsel opposed to us, “ that if such decrees, which merely contained the determination of the court, without any reference to the facts of the case, should bo conclusive, the bill of review could never be brought.” The lord keeper, in Brand v. Brand, 1 Vern. 213, after the point we have alluded to had been discussed, decided, “ that he would not allow that way of drawing up decrees, in general, but that the facts that were proved, and allowed by the court, as proved, should be particularly so mentioned in the decree; otherwise, if a bill of review was brought, these facts should not be taken as proved. For else, a decree could never be reversed, by a bill of review, but all erroneous decrees must be reversed by an appeal to the House of Lords. And the.same ^decision, to its fullest extent, is to be found in Benham v. Newcomb, 1 Vern. 216.
    The authorities cited by the defendants prove no moro than we are willing to admit, when if appears the decree has been properly drawn up and enrolled. ¥e insist, however, that the remedy sought by the present complainants is a statutory one, and must be governed altogether by the rules prescribed in the act regulating our chancery practice. The policy of our legislature, let it be mistaken or not, appears to have been to dispense altogether with the long and tedious recitals usually found in a decree in chancery, and to substitute the whole record that was before the court. The law of 1810 was in force when the case sought to be reviewed was decided, and in the thirty-third section it is made the duty of the court, “ to cause the facts on which they found their sentence, or decree, fully to appear upon the records, either from the pleading and decree itself, or from a state of the case agreed by the parties or counsel, and where the parties or their counsel can not agree on the facts, then the court may either cause the examination of the witnesses to be reduced to writing by some person named by the court, which being .read to, approved of, and signed by the examinant, shall be entered on •record, and made use of on the trial of the cause, either at that time, or at any future hearing of the same.” In section 39 the clerk of the court is required “ to enter together in order, the petition, answer, pleadings, reports, decretal orders, statements of facts found by the jury, or agreed by the parties, and decree in such cause, in a booh to be kept for that purpose, which shall be signed by the court at the next 
      
      term, as of the day on which such decree was pronounced; but such ■decree shall not contain any recital of the petition, answer, or other pleadings.” And in Beetion 63, it is expressly provided that a bill •of review may be brought “ upon errors of law, appearing in the body of the decree, or proceedings themselves.”
    
    It is believed, then, that an answer is furnished to the defendants’ objections on this part of the case. We claim nothing more under this bill, than we should ask, if we were arguing a writ of error in a court of law. We look alone to the record; we have assigned all our errors upon the record. We, therefore, conclude that whatever is *found there is open for examination. It is .said that the evidence, in a court of law, is no part of the case, ■when application is made to reverse the judgment, unless it appears in a bill of exceptions. True, but if the law required the note or other contract to be recorded, it is presumed it is as fair a subject for future investigation, before the proper tribunal, as the declaration, or plea. Before the statute of 1824, the writ was no part of the record at law; and no matter how informal it might be, unless the defendant moved to quash it, at the appearance term, or to set the subsequent proceedings aside before judgment, for irregularity, he was forever precluded ; under the present law, it is presumed, no one will doubt the right to predicate error on a substantial defect in the mesne process, and certainly not on a .special verdict, however solemn may have been the adjudication of the court, on the law arising from the facts found by the jury.
    In the present case, it will be recollected, no facts were found to be proved by the court, and the only grounds they could have had for making the decree are contained in the bill, answer, exhibits, and depositions. If fhese are disregarded, the arbitrary ■decision of the chancellor, unsupported by evidence, can at any time conclude the parties litigant. The complainants have a right, with certain limitations as to time, to claim a review of the decree sought to be reversed. If successful in their application, they must be restored to the same legal privileges which attached to them before the decree was made. Hence we infer, in addition to the positive provisions of the statute, a necessity that the circumstances on which that decree was founded should again be open ■for thorough examination.
    Judge Burnet, having been original counsel for the complain.ants, did not sit in this cause.
   By the Court :

In bills of review, the practice of this court has been to examine the whole case, and decide as if the matter was open before them in the same situation as it was when the decree was pronounced. When the facts proved and ^principles decided are not inserted in the decree, a bill of review, for error in law, would be useless if this course was not pursued. It is attended with some inconveniences, but greater mischief would probably result were we to decline reviewing any decree where, from the nature of the case, a brief general decree would, on its face, be free from, error. In the case now before us, however, we may bo satisfied that the decree of dismissal is unsupported by any possible deduction from the facts in proof. The complainants would be without remedy if we were confined to the examination of the decree alone. Whether it be erroneous or not must depend upon facts on which it was predicated. As they are not recited, we can only find them by an examination of the proofs.

This mode of proceeding has not heretofore been controverted. The general adoption and acquiescence in the practice, both by the bar and the court, evinces a general sentiment as to its correctness and utility.

The difference between our practice in drawing up and entering decrees and the practice in England and New York sufficiently accounts for the departure, amongst us, from what is elsewhere an established rule of proceeding. On this point the demurrer must be overruled. It must also be overruled generally. But, as the cause may again come before us, we do not express the grounds upon which we go on the second point.

The court pronounced a decree reversing the original decree of dismissal, and made an order that the bill of review be retained as a supplemental bill, and stand for plea or answer, and that the cause be proceeded in as upon original and supplemental bills.f 
      
      HoTE by the Editor. — The same principle contained in this case is found in vii. 184, part 1; xv. 313; xvi. 145. The English and American practice is, that in the former the decree contains a statement of the facts upon which it is based, in the latter it usually does not, but the bill, answer, other pleadings, and decree are made part of the record, and in both countries the record must show the error complained of; and in Ohio, when the facts are found in a decree, they will not be reviewed, and the English practice will he adhered io, xv. 313; xvi. 412. Eor Ohio decisions touching reviews generally, see the Above cases, and vii. 125, part 2; viii. 377; xii. 351; xiv. 122; xvii. 27; xviii. 146. For Ohio statutes now in force touching bills of review, see Swan’s >Stat. 714, 717; xlvi. 90.
     