
    Ellzey v. Lane’s Executrix.
    Wednesday, October 5, 1808.
    Bill of Review — Final Decree. — A MU of review cannot "be brought until the decree, sought to be reviewed and reversed, is ñnal, and the parties out of Court.
    /Costs in Appellate Court — Prevailing Party.  — The party substantially prevailing in the Court of Appeals is entitled to costs, although, in form, the decision be against him.
    The point, in this cause, upon which it went off, was, that a bill of review would not lie to a decree foreclosing the equity of redemption in mortgaged lands, before any sale was made, and the report of the commissioners returned and confirmed by the Court of Chancery, and the ^parties completely out of Court.  The merits were not considered by the Court.
    The case (so far as it respects the points decided) was this: H/ane brought a suit in the late High Court of Chancery, against hvllzey, to foreclose the equity of redemption in mortgaged lands; the bill was taken for confessed for want of an appearance; and a decree entered, in the usual form, for a sale of the lands by commissioners, who were directed to report to the Court, &c. Before any sale was effected, IQllzey, by leave of the Court, filed a bill of review, charging that the conveyance of the land was obtained by Lane upon an usurious consideration, calling upon him to make a discovery, and praying to be released from the interest under the act of Assembly,  and that a reasonable time, to make sale of the land, might be allowed. I^ane answered, and denied that the contract was usurious. The Chancellor, however, upon the circumstances, (no depositions having been taken in the cause to support the charge of usury,) was of opinion that the contract was usurious, and, pursuing the prayer of Ejllzey’s bill, decreed that he should be released from the interest, and , gave time for the sale of the land, by commissioners appointed by the Court. From this decree iQllzey appealed.
    This cause was argued by the Attorney-General for the appellant, and by Fdmund J. Lee and Wirt for the appellee. Various points were made by the counsel on both sides. On the merits, the principal question was, whether, as EJllzey had gone into a Court of Chancery for a discovery of the usurious contract from the oath of Iyane, he could obtain *any other relief than a discharge from the interest of the debt, pursuant to the prayer of his bill; or whether, as the usury was proved (as was contended) independent^' of, and in opposition to, the answer, the defendant (Lane) should not be subjected to all the penalties of the act.
    As to the propriety of allowing a bill of review in the stage of the proceedings at which this was filed, it was said, that the case of Fairfax v. Muse’s Executors,  having settled the point, that a decree to foreclose the equity of redemption in mortgaged property was but interlocutory, until a sale had taken place by commissioners, and their report had been returned and confirmed by the Chancellor, the only inquiry was, whether a bill of review would lie in any case till a final decree. To prove that it would not, the following authorities were cited: 1 Har. Chancery Pratice, 652; Ibid. 169 ; Mitford’s Pleadings, 78, 81.
    
    
      
      BH! oí Review— When It Lies. — Tb e rule laid down .in the principal case is well settled, namely, that a bill of review lies only to a final decree, for errors of law apparent upon the record, or upon the discovery of some new matter. See monographic note on “Bills of Review*’ appended to Campbell v. Campbell, 22 Gratt. 649.
      The principal case is cited with approval in Clay-■torv. Anthony, 15 Gratt. 526; Laidley y. Merrifield, 7 Leigh 858; Dingess v. Marcum, 41 W. Va. 763, 24 S. E. Hep. 626.
      The principal case is distinguished in Laidley v. Merrifield, 7 Leigh 355.
      Decrees — When Interlocutory. — As to when decrees are interlocutory, see foot-notes toGrymes v. Pendle-ton, 1 Call 54; Fleming v. Bolling, 8 Gratt. 292, and monographic note on “Decrees” appended to Evans v. Spurgiu, 11 Gratt. 615.
      The principal case is cited in Cocke v. Gilpin, 1 Bob. 36; State y. Bays, 30 W. Va. 120. 3 S. E. Rep. 184; Man ion v. Fahy, 11 W. Va. 493.
      Bill of Review — Leave to File. — it was held in an early case that the practice in Virginia and West Virginia was to apply in the first instance for leave to file a MU of review, whether it be for error apparent in the body of the decree, or upon discovery of new matter since the decree was pronou need. Amiss v. McGinnis, 12 W. Va. 394. citing the principal case; Robinson's Prac. (old) 418; Quarrier v. Carter. 4 Hen. & M. 243.
      And in a recent Virginia case this rule was affirmed, the court holding that every bill of review. whether for after-discovered matter or for ■errors apparent on the face of the decree, must be filed with leave of the court. Heermans v. Montague, 2 Va. Dec. 6.
      Professor Minor, however, drew a distinction "between bills of review for errors apparent and Mils of review for after-discovered matter; he said that no previous leave was necessary in the first •case, though it was indispensable in the latter. 4 Min. Inst. (3d Ed.) 1508. But, as was pointed out :in Heermans v. Montague, 2 Va. Dec. 6, there can, in the nature of things, be no good reason for this ■distinction.
      But in Biggs v. Huffman, 33 W. Va. 426, 10 S. E. Rep. 795, it was said that the practice iri West Virginia was unsettled as to whether formal leave of ■court must first be obtained before filing a bill of review for errors apparent in the decree, though the court was strongly inclined to hold that no previous leave was necessary.
    
    
      
      See monographic note on “Costs” appended to Cones v. Tatum, 19 Gratt. 720.
    
    
      
       See the case of Fairfax v. Muse’s Executors, ante. p. 558, where a similar decree was considered, as interlocutory only. — Note in Original Edition.
    
    
      
       See Rev. Code, vol. 1, c. 31, p. 37, s. 3, and ib. c. 219, p. 367, s. 3, same law.
    
    
      
       Ante, p. 558.
    
    
      
       8th Dublin edit, or, 439; Farrand’s edit, under the head “Of signing- and enrolling decrees."
    
    
      
       8th Dublin edit, or, 13? Farrand’s edit, under head “Of Bills of Review. ”
    
    
      
       See “Pleadings and Observations on Bills of Review,” 1 Equity Pleader, 34?, Dubl. edit. 1?96. See also the case of Gould v. Tancred, 2 Atk. [533] 548. in which Ld. Hardwicke states the grounds upon which bills of review may be brought, and the constant method pursued by both parties; which is such, “that in effect you cannot bring a bill of review without having the leave of the Court in some shape;” for if it be for matter apparent in the body of the decree, then upon the defendant’s pleading the former decree, and demurring against opening the enrolment, (which is the constant course in England,) the Court judges whether there be any grounds for opening such enrolment; if, for new matter, then, upon application for leave to bring a bill of review, the Court will judge whether there be any foundation for such leave. But, in Virginia, the practice is. to apply for leave to file a bill of review in the first instance, whether it be for error apparent in the body of the decree, (Mitford’s Pleadings, 78; 1 Har. Ch. Prac. 452; Farrand’s edit. 1 Eq. Pleader, 348,)'or, upon a mistake in conscience, upon the proof before the Chancellor; and that is the usual course (1 Roll. Abr. 382, 1 Har. Ch. Pract. 352, 353; Farrand’s edit, 1 Eq. Pleader, 348, 4 Vin. 408, pi. 4.) Or, upon discovery of new matter since the decree was pronounced. (Mitford’s Pleadings, 78, 1 Har. Ch. Prac. 352; Farrand’s edit. 1 Eq. Pleader, 348 ; 4 Vin. 407, let. (Z).) The Chancellor, either in term time or in vacation, may award a supersedeas to stay proceedings on the original decree, pending the bill of review. Rev. Code, vol. 1, c. 64, s. 60. p. 68, 69. And the practice of the County Courts, in Chancery cases, shall conform to that of the High Court of Chancery in like cases. Rev. Code, vol. 1, c. 67, s. 69, p. 92. — Note in Original Edition.
    
   *Friday, October 7. The Judges delivered their opinions.

JUDGE TUCKER.

This was a bill of review to an interlocutory decree of the High Court of Chancery for the sale of certain mortgaged premises; in which suit the mortgagor, though duly served with notice of the decree nisi, put in no answer; whereupon the bill was taken for confessed, and a decree of foreclosure made in the usual form, May 26, 1801. The bill of review was received by the Court, March 2, 1802. The sale had not been made, nor any final decree pronounced. It is unnecessary to state the grounds upon which the bill of review was admitted, as a previous question arises, whether such a bill was admissible, at that stage of the proceedings.

In the case of Paifax v. Muse’s Executors, last term, this Court decided, that a decree of foreclosure and sale of mortgaged estate, unless the debt were paid by a certain day, was not a final decree; and for that reason dismissed an appeal which had been allowed by the Chancellor during- vacation. In.the case of Bowyer v. Lewis, the question occurred whether a bill of review will lie before a final decree made in the cause. On that occasion I delivered my opinion that it would not, for the reasons there mentioned, to which I beg leave to refer ; and I believe there was no difference of opinion in the Court. Considering the bill, in the present case, as a bill of review, properly so called, I am of opinion it was. prematurely granted; a supplemental bill,, in nature of a bill of review, is to be allowed only where new matter has been discovered, since the decree: that is not the case here. The decree not being final, might have been altered upon a re-hearing, ^without the assistance of a bill of' review, if there were sufficient matter to reverse it appearing upon the former-proceedings, And there must be a petition for such re-hearing,

In order to come at the merits of this, case, which, as far as they have been spoken to, has been very ably argued on both sides, I was willing to see whether this bill could be considered in the nature of a cross-bill, to the bill for foreclosing;. and if the defendant in that suit had put in his answer to the bill to foreclose, I probably should have struggled hard, (though, possibly without success,) for such an interpretation. But this he has never done, and consequently he is not entitled to any favour in that way. I am therefore constrained, without giving any opinion on. the merits, to say, that the bill of review was improperly admitted by the Chancellor, and therefore, that the decree be reversed, and the bill dismissed with costs.

JUDGE ROANE

concurred in the opinion, that the bill had been improperly received as a bill of review, the decree sought to be reviewed and reversed, not having been final; and that the bill ought to be dismissed.

JUDGE FLEMING.

It seems now a well, settled principle, that a bill of review may not be brought, (and if brought cannot be-sustained,) until the decree sought to be reviewed and reversed be final, and the parties out of Court; and then can be sustained on two grounds only: 1st. Where error of law is apparent upon the record; and 2dly. Upon discovery of some new matter; and in the latter case, the plaintiff' in the bill of review must obtain the previous leave of the Court for filing such bill;; and the leave of the Court is never obtained, but upon allegation, upon oath, that the new matter could not be produced or used, by the party preferring this bill, at the-time the decree was pronounced: and the Court, upon the new matter being discovered, will decide upon its relevancy or irrelevancy; and ^permission to file-such bill of review will accordingly depend upon such decision.

Forgetfulness or negligence of parties, under no incapacity, is no foundation for a bill of review.

It is unnecessary to consider the doctrine of supplemental bills, in the nature of bills of review, as it does not apply in the case before us; and the bill, now the subject of discussion, having been prematurely brought, before a final decree, must, agreeable to the first principle above laid down, be dismissed.

By the whole Court, (absent JUDGE DYONS.) the decree of the Superior Court of Chancery reversed, and the bill of review filed by Ellzey, dismissed, at his costs.

Ellzey being the appellant, in this Court, and the decree of the Superior Court of Chancery having been reversed,

Wirt said, he understood that, according to the usual course, the clerk would tax the costs against the appellee, (Dane’s Executrix,) although she substantially prevailed. This would not be equitable, inasmuch as the error was produced by Ellzey himself, in filing a bill of review improperly; and for another reason, that he took an appeal from a decree which gave him every thing he asked for in his bill.

By all the Judges. The appellee having substantially prevailed, let the decree be reversed at the costs of the appellant. 
      
      Ante, p. 558.
     
      
       1 Hen. & Munf. 553.
     
      
       2 Atk. 40, Lewellin v. Mackworth; Mitford’s. Pleadings, 82, 3 Atk. [811] in arguendo, per Yobke..
     
      
       2 Ves. 597, 598, Moore v. Moore.
     
      
       In Mantz v. Hendley, ante, p. 308, the same principle was adopted. There the judgment of the District Court, from which Mantz took an appeal, was reversed and reformed: but, as be substantially prevailed, he recovered his costs.
     