
    BENEDICT JOHNSON vs. A. L. OFFUTT ET AL.
    I. A bill of review to correct an error not apparent upon the face of the record cannot be filed unless leave of the court is first obtained. *
    II. Where the matter complainant relies upon in a bill of review is not new, and could have been produced by him on the former hearing^ and where he appeared and. answered without disclosing it, he is not entitled to this relief.
    III. Where a bill of review has been filed and dismissed, and a motion to file a second one has been refused, this will be a bar to any further-proceedings.
    STATEMENT OE THE CASE.
    This is a bill of review brought to have a former decree of' this court reviewed aud reversed as to the complaiuant in the present suit. The bill alleges that Elijah Shelton, late of this District, by a deed dated 28th July, 1853, and duly recorded, conveyed to complainant the north half of lot 23,. in Beatty and Hawkins’s addition to the city of Georgetown. It then sets forth that after the death of said Elijah Shelton,, which occurred in 1854, the creditors of said Shelton filed a bill against the administrator and heirs at law of said Shelton, deceased, alleging, among other things, that he was seized on. the 12th day of May, 1852, of all of lot 23 aforesaid, and that he was at that time indebted to the complainants in that bill,, and that he had conveyed at said last-mentioned date the. south half of said lot to one King, upon certain trusts; that, said conveyance to King was fraudulent as to creditors, and prayed that' an account of the real and personal estate be taken, and a sale be made for the payment of the debts due-the parties filing the bill in that case.
    The present bill then states that the complainant herein, was named as a defendant in said creditor’s bill as the husband of one of Shelton’s children, and as tenant by the curtesy in his estate; that he did not employ counsel; and that in 1856 an answer was filed to such creditor’s bill by Walter S-Cox, in the name of the plaintiff and other adult heirs, of' which he was ignorant, and which he did not sign or swear to t. that the court in general term passed a decree adjudging said deed of trust not to be fraudulent, and ordered the north half of said lot to be sold for the payment of Shelton’s debts.
    On the 12th July, 1871, a decree was passed by Justice Wylie ordering the north half of said lot to be sold, &c., and that upon the final ratification “there shall be conveyed to the purchaser all the right of the parties in this case in and to the ground,” &c.
    That plaintiff, hearing of decree, did, on the 5th of September, 1871, through J. Bell Adams, esq., file a petition for rehearing and dismissal of suit as to his part of lot 23; that summons issued and was served, and plaintiff was ready with his proofs, when, on a motion filed 26th of February, 1872, for reasons entirely technical, said petition on March 5, 1872, was dismissed.
    Plaintiff, November 9, 1872, asked leave through B. H. Webb, esq., to file a bill of review before the court in general term, which petition was, November 16, 1872, refused.
    Said part of said lot was advertised for sale 12th October, 1874, and said plaintiff, relying on his counsel’s information that his rights would be protected, did not know of it till such notice of sale. That at said sale he protested that his and not Shelton’s lot was being sold, but that that sale was made. That said decrees and orders, under color of which said sale was made, are now enrolled and final, and have been executed by sale, but should be reviewed and set aside for various reasons. That Shelton, by said deed, had divested himself of said part of said lot, did not die seized thereof, and it did not descend to his heirs, and was not subject to his debts. That the answer so put in as aforesaid to said creditor’s bill does not contain any allegation of his ownership to the north half of said lot, and that complainant is a colored man, and ignorant, and has been diligent in the assertion of his rights, and he prays that the decree may be reversed and reviewed, and for general relief.
    To this bill the defendants entered a demurrer, and assigned the following causes of demurrer:
    1. No errors, nor is sufficient matter alleged.
    2. No allegation that leave of court was first had and obtained for filing bill of review.
    
      3. It appears that bill of review was heretofore filed, which was dismissed.
    4. No jurisdiction in this court to review a decree made by the highest appellate court, viz, the court in banc.
    The cause is heard here in the first instance.
    
      Charles M. Matthews for complainant.
    W. D. Gassin and Frederick W. Jones for defendant.
   Mr. Justice MacArthur,

delivered the ■ opinion of the court:

From the admitted statements in the bill the court could not but feel an inclination to relieve the complainant, if he could be relieved consistently with the principles and practice adopted for the administration of justice. W e are inclined to think that we cannot assist him without disregarding the settled law of the court. When a grievance cannot be redressed without this result, more mischief will arise from the attempt than from suffering matters to remain as they are. The complainant has already filed one bill of review, which has been dismissed at the equity term, and an application to file a second one has been refused by the general term, and the one now before us is the third in the series filed at the discretion of the party himself, without the requisite consent of the court having been first obtained. Perhaps this would be a sufficient objection to the present bill. But there are more serious considerations, leading to the same conclusion, and which at any time subsequent to the enrollment of the decree sought to be reviewed would have been fatal to any bill of the kind.

The circumstances under which this species of bill may be brought are stated in Cooper’s Equity Pleadings, at page 91. Speaking of a bill of review, he says: “It may be brought upon discovery of new matter, as a release or a receipt since discovered; but Lord Hardwicke declared that the constant construction which had been put upon this part of Lord Bacon’s rule was, that the new matter must have come to the knowledge of the party after publication passed. And it must be on new matter to prove what was before in issue, for a party cannot be entitled to a bill of review on new matter to prove a title which was not before in issue. And if there has been anything like mere forgetfulness or negligence in parties under no incapacity, it will not do. And it must appear that the new matter has come materially and substantially to the knowledge of the party or his agents, which is the same thing, since the time of the decree in the former cause, or since such time as he could have used it to his benefit and advantagein the former cause; and, further, that such matter is relevant and material, and such as might probably have occasioned a different determination. But leave of the court must be obtained before a bill of review can be filed on this ground, and which the court will not grant without an affidavit that the new matter could not be produced or used by the party claiming the benefit of it at the time when the decree was made, and which affidavit must state the nature of the new matter, in order that the court may exercise its judgment upon its relevancy and materiality.”

And the bill in the present case fails in all these requirements. In the first place, the complainant appeared in the creditor’s suit, and answered without disclosing his title. The error of which he complains is therefore not apparent upon the face of the record. It was therefore a case in which it was necessary to obtain leave of the court in order to file a bill of review. The title complainant relies upon is not new matter, but existed prior to the former suit, and could have been used to his advantage at the time when the decree was made. He has acquired no new knowledge since, and is possessed of no fact now which he could not have produced and used at that hearing. Moreover, a bill of re- ■ view has been heretofore filed and dismissed, and a motion to file another has been denied. We think this should be a bar to the present proceeding. The demurrer is sustained and the bill dismissed. .

Mr. Justice Wylie

concurred in the decision, but was of opinion that the bill could be filed without first obtaining leave of the court, as the matter complained of was probably apparent upon the record.  