
    Livingston against Hubbs and others.
    
      November 26.
    A bill of review, on matter of fact, is not allowed to be filed, unless on oath of the discovery of new matter or evidence, which has come to light since the decree, or, at least, since publication, and which could not possibly be had, or used, at the time publication passed.
    Newly discovered evidence, which goes to impeach the character of witnesses examined in the original suit, or of cumulative witnesses to a litigated fact, is not sufficient.
    The matter of fact, newly discovered, must be relevant, and materially affecting the ground of the decree.
    A bill of review will not be allowed, unless- the decree has been performed by the party seeking the review ; but where he is in execution for the non-payment of the money and costs awarded to be paid by him, and which he is-unable to pay, it seems that leave te file a bill of review will not be denied, on the mere ground of non-performance of the decree.
    PETITION of the defendant, Hubbs, for leave to file a bill of review. After stating the substance of the original-bill, and answer, and evidence on which the decree was made, (vide S. C., vol. 2. p. 512.) the defendant stated, that since the decree, he had discovered that several of the witnesses of the plaintiff, who had, in their testimony contradicted the statement in his answer, had mistaken the land in question, and had testified respecting lands adjoin-
      mg thereto, or had confounded it with the adjoining lands, so that their evidence was irrelevant; and that, by the fraudulent combination of the plaintiff, and his agent, Paul Suits, several other of the witnesses who were examined, had been shown a different tract of land from the one in controversy, and of greatly inferior value; that W. Kerr, who deposed that he was a commissioner of taxes, and had not assessed the land in question on account of its inferior quality, was never a commissioner of taxes, but had been convicted of forgery; and that from the certificate of the clerk of the commissioners, it appeared that the premises in question had been taxed as land fit for cultivation ; and that other of the witnesses examined, were persons of bad fame, and unworthy of credit, all which W'as unknown to the defendant, (II.) until since the decree. That since the decree he had procured the tract of land in question to be súrveyed, and that several respectable and intelligent persons had visited it, and declared it to be as represented by him to the plaintiff. That the defendant is now in execution for 250 dollars, and the costs awarded by the decree. That the ground of the decree was, that the land had been represented to the plaintiff to be of good quality and fit for cultivation, when, in fact, it was not.
    Prayer for leave to bring in a bill of review, to obtain a reversal or modification of the decree.
    Various documents, and several affidavits, were annexed to the petition. Affidavits on the part of the plaintiff were, also, read, in opposition to the motion.
    
      H. Bleecker, Burr, and Bracket, for the petition.
    They cited, 1 Ch. Cos. 42, 43. Mitf. Pl. 66. 71. 78, 79. 4 Vesey, 186. 211. 8 Vesey, 438. 465. Bohun’s Ch. 382. 2 Freem. Rep. 172. 1 Vern. 117. Cooper’s Pl. 89. 91. 1 Harris. Pr. 171. 1 Vesey, 435. 3 Burrow, 1771. 1 Bos. & Pull 427. 2 Caines’ Rep. 224.
    
      <i?ampson, and Mackay, contra.
    They cited 1 Harris. Prac. 138, 139. 143. 187. Wiser v. Blachly, (2 Johns. Ch. Rep. 488.)
   The Chancellor.

The question, whether the representations of the defendant, Hubbs, as to the quality of the tract of land in Pennsylvania, and mentioned in the pleadings, were true or false, was one of the matters of fact, in issue, in the cause. The defendant was charged, in the bill, with gross misrepresentations on that point, and the charge was denied in the answer, and put at issue. The defendant’s attention was called to the very fact, and he was bound to use reasonable diligence in bringing forward his proof on that point. The necessity of a reasonably active diligence, ii) the first instance, is imposed upon parties, and a bill of review is not to be sustained merely to accumulate testimony. This is the clear and necessary doctrine of the court. (Youngs v. Keighly, 16 Vesey, 398.) The rule of Lord Bacon, as declared in his Ordinances, No. 1. (and Lord Harchoicke says the rule has never been departed from,) is, that a bill of review, upon matter pf fact, must be upon special leave of the court, and upon oath of the discovery of “ new matter, or evidence which hath come to light after the decree, and could not possibly be had or used at the time when the decree passed.” If the party might have used the new proof when the decree was made, it is not a sufficient ground for a bill of review.

There is no newly-discovered evidence, in this case, but what might have been had, with ordinary diligence, in the first instance. The defendant might have had the lands surveyed, and viewed, and located, and the question of the assessment, and payment of taxes established, as well before publication passed in the cause, as since the decree. There never was a more lame and feeble attempt to support a bill pf review, on the ground of newly-discovered evidence. ¡Most of the testimony goes to the credit of the witnesses examined on the part of the plaintiff; but the credit of witnesses is not to be impeached after the hearing and decree. Such applications for an examination to the credit of a witness are always regarded with great jealousy, and they are to be made before the hearing. (White v. Fussell, 1 Vesey & Beame, 151.) There would be no end of suits, if the indulgence asked for, in this case, was to be permitted.

The nature of the newly-discovered evidence must be different from that of the mere accumulation of witnesses to a litigated fact In Taylor v. Sharp, (3 P. Wms. 371.) the Lord Chancellor spoke of such new matter as a receipt, release, &c., and observed, that unless the relief was confined to such new matter, it might be used for vexation and oppression, and for the cause never to be at rest; and in a case already referred to, Lord Eldon observed, that a party was not, indeed, bound to know every thing which he could have discovered; for instance, he might not be held bound to look into a box for instruments which no human prudence would have suggested. The language of these cases show strongly the nature and strictness of the rule as to newly-discovered proof.

It seems not, indeed, to be requisite that the new matter should have come to the party’s knowledge after the decree, according to the letter of Lord Bacon’s rule. It is sufficient, if it be discovered subsequent to publication. (Amb. 292. 3 Atk. 26.)

2. But it must be a matter of fact materially relevant and pressing upon the decree. This was the doctrine in Bennet v. Lee, (2 Atk. 529.) in Morris v. Le Neve, (3 Atk. 26.) and in Young v. Keighly. The facts set forth in this case, as newly discovered, do not appear to me to be material to the merits of the caus.e. The fraudulent combination between Baldwin and Hubbs, to impose upon the plaintiff, is still equally apparent. Hubbs was acting under the influence of his own interest, when he acted as arbitrator. That interest was founded on his previous agreement with Baldwin, and his umpirage was founded in corruption. The purchase of 135 acres, which formed part of the tract of land in question, was done in furtherance of the same fraudulent combination; and I think the weight of evidence is still decisive, that his representations of the quality of the land were false and fraudulent. The very certificate which he now produces from George Palmer, shows the tract of land to be almost worthless, for it states the tract to be on the side and top of a mountain; that about one-third part may be cultivated and that the soil is thin. The other two-thirds would seem to be stones and worthless, except that some part of the timber might do for sawing. The new proof now exhibited would not alter the merits of the case, nor remove the conclusion already drawn from the pleadings and original proofs; that the proceeding by which the exchange of the land in Brooklyn, for the Pennsylvania land, was effected, was a fraud of Hubbs and Baldwin, practised upon the plaintiff. I think the weight of evidence would still be, that the witnesses had not mistaken one tract of land for another.

Either of the grounds I have mentioned appear to me to be sufficient to resist the application. It was, also, one of Lord Bacon’s rules, that no bill of review was to be allowed, except the decree had been first performed, as if it be for money, that the money be paid; and this rule we find to be afterwards declared and acted upon. (2 Bro. P. C. 24. note. Wiser v. Blachly, 2 Johns. Ch. Rep. 491., and the cases there referred to.) But where the party is in execution under the decree, and unable to pay, (as is the case here,) I should rather conclude that the non-payment of the money is not an insuperable obstacle; and so it seems to have been understood. (1 Vern. 117. 264.)

I shall, therefore, dismiss this petition, with costs. They are awarded when the application has no colourable support. (3 Atk. 32.) By an ordinance of Lord Hardwicke, in 1741, no bill of review, for newly discovered evidence, was to be permitted without a deposit of 50 pounds to answer damages and costs, if the court should award any.

Prayer of the petition denied, with costs.  