
    Curry v. Burns.
    [Wednesday, May 12th, 1802.]
    Chancery Court — Bill of Review — Quaere.—Whether the Court of Chancery can grant a bill of review to a decree of the Court of Appeals, or County Court, upon new matter being discovered after the decree was made?
    Burns filed a bill in Chancery, in the County Court of Berkeley, stating, that on the 13th of March, 1756, he obtained a warrant from the proprietor’s office for 400 acres of land, and paid the usual office fees. That by virtue of the said warrant, Baylis, one of the proprietor’s surveyors, surveyed 214 acres, and returned a plat thereof to the office; for which survey and return, the plaintiff likewise paid the usual fees; and, in order to obtain a deed, was always ready and willing to pay the composition and other customary fees, which he actually offered to the proprietor about the month of May, 1770, and demanded a deed; but the same was refused. That Curry obtained a deed from the said proprietor’s office for 140 acres, *part of the said 214 acres, on the 20th of August, 1768; and had recovered a judgment in ejectment therefor against the plaintiff; who prays an injunction, and for general relief.
    The answer of Curry denies any knowledge of the matters charged in the bill, except the grant to himself, and the ejectment.
    A witness says, that about the year 1763, he purchased of Burns a survey, including that in dispute, for 400 acres, and that he resold it to him two years afterwards. That this was before Lord Fairfax advertised for his tenants to come in and settle, and receive their deeds. A second witness, sworn in May, 1790, says, that upwards of 20 years béfore, he saw Burns offer Martin money, at Lord Fairfax’s office, and ask him for a deed for his land; but the latter said it was too late. Two other depositions state, that, about the year 1768, Burns made a similar offer and request, and that he received the same answer. There are in the record, a copy of Burns’ survey, of 214 acres, dated the 13th of March, 1756; a copy of the warrant for 400'acres, likewise dated the 13th of March, 1756; a copy of Lord Fairfax’s deed to Curry, dated the 10th of September, 1770; and a copy of the Governor’s patent to Burns for the 214 acres, dated March 1st, 1788. The County Court perpetuated the injunction, and decreed a conveyance to the plaintiff. From which decree, the defendant appealed to the High Court of Chancery, where the same was affirmed; and, from the decree of affirmance, the defendant appealed to this Court, where both decrees were reversed, and the bill dismissed. 2 Wash. 121-6. Whereupon Burns filed a bill of review against Curry and Vanmetre, in the High Court of Chancery; which, reciting the substance of the former bill, adds, that it was drawn at first with blanks, and, through mistake, was afterwards filled up by his counsel, with the month of May, 1770, instead of 1767, or 1768 the *true" period; which was before Curry’s title accrued. That these discoveries were made since the determination of the former suit; and that Vanmetre was a pendente lite purchaser. The answers to the bill of review, refer to the proceedings in the former cause, and state that the defendants do not think it probable that the dates in the bill of injunction would have been inserted, by counsel, without the plaintiff’s consent; and that they do not admit the tender at the time spoken of by the plaintiff, or before Curry’s title accrued.
    A new witness says, that, about 1768, the plaintiff called at his house, and said he was on his way from Lord Fairfax’s office, where he had been to get his deed, which he had often applied for before. That he lives two miles from the plaintiff, but had never conversed with him, about it, since that time. Another new witness says, that in the spring of 1767, he was in company with the plaintiff, who informed him that he had been at Lord Fairfax’s office, and was refused his deed. That he met the plaintiff on his way home from the office, and .that the weather was excessive cold; which was the reason why he enquired where Burns had been. That he lives about five miles from the plaintiff, and has often conversed with him upon the subject. A third new witness says, that in March, 1767, the plaintiff called at his house, with a led horse, on his way to Lord Fairfax’s office, to get his deed. That he said he meant to take Ryan, (the second witness mentioned above in the original suit,) with him as witness. That he lives two miles from the plaintiff, but does not recollect to have conversed with him about it since. A fourth new witness says, that, about the year 1767, Ryan came to her father’s (the plaintiff’s) house to borrow a horse to bring down his mother, who lived above Lord Fairfax’s. That the plaintiff lent him a horse, and went with him, saying, that he would go to *Lord Fair-fax’s to get his deed. That he came back in about three days, and said he could not get it. That when her father set off, it was warm but when he returned it was cold and wet, and there was a deep snow. A fifth witness says he was the plaintiff’s attorney in the injunction, and is satisfied that the blanks in the bill were filled up, and the alterations made, with his knowledge and approbation. A sixth witness says, that after Lord Fairfax advertised for those who had surveys, to come and take their deeds, he met the plaintiff, and asked him whether he did not intend to go and clear out his land; who answered, that the land was poor, and that he must help poor people. Two other witnesses speak as to the appearance of the dates in the bill of injunction, that they seemed to be written with a different pen and ink, and that there were erasures in the bill, with the same kind of ink that the blanks were filled up with; which was blacker, than the ink the bill was in’ general written with.
    There is in the record of the bill of review, a copy of Lord Fairfax’s advertisement for tenants to come in before the 29th of September, 1766, pay their fees, and receive deeds under pain of forfeiting their rights.
    The High Court of Chancery reversed the decree entered there in conformity to the decree of the Court of Appeals; and, thereupon, Curry again appealed to this Court.
    Call, for the appellant.
    The new record only exhibits the old case. The plaintiff’s charge as to the alteration of dates in his first bill is plainly founded on a mistake of the principle, which the Court declared ought to regulate these-cases in general; and of the date which governed this particular case. The opinion of the Court was not, that eleven years, or any other precise time, was the period of forfeiture, but merely, that eleven years, unaccompanied with circumstances, was too long: That the taking- advantage of the forfeiture *was the material act, which destroyed the right of the claimant under the former warrant: That an express appropriation by survey or otherwise was such an act; and, as the survey and appropriation in this case were ordered on the 20th of August, 1768, that that ought to be considered as the true period when the forfeiture was to be considered as having been taken advantage of. Under which point of view., it was evidently unimportant, whether the alteration in the dates of the former bill were actually made or not, although there is great reason to suppose the plaintiff is mistaken as to the fact; because the Court did not proceed upon those dates, but upon that of the survey. The true enquiry therefore, is, whether the new evidence varies the case? The copy of the advertisement, which declares the forfeiture, if not attended to; and the testimony of the witness who declares the intention of Burns to abandon, are favorable to the appellant: But the last evidence proves nothing new in favor of the appellee. For, there are such a contrariety and minuteness in it, that the effect is destroyed. Besides, there are four witnesses who state the tender not to have been made sooner than 1768, and only three, who make it to have been in 1767. But they all refer to Ryan; who says it was after Curry’s survey was directed. Besides, the new witnesses state nothing of their own knowledge; but merely the declarations made by the plaintiff himself, which are no evidence, and, therefore, the case is, substantially, the same, as it was before. But, if the new testimony was important, there is great reason, from the circumstances, to presume it must have been known to the plaintiff, before the former hearing ; because they were ail his own near neighbors, except one, who was his daughter; the suit was in his own County Court, and it-is as probable, that he who was interested should have recollected his conversations with some of them, as that each of them, without interest, would have distinctly remembered so many minute incidents, and separate conversations. The bill of review ought not to have been allowed by the Court of Chancery. 1st. Upon the doctrines of that Court, with regard to bills to review its own decrees. 2d. Upon the ground, that the Court of Chancery cannot review and reverse a decree of this Court. With respect to the first, it is a rule that the plaintiff cannot bring a bill of review and examine witnesses, in contradiction of what he has endeavored to establish before. [Bennet v. Bee,] 2 Atk. 531. But here the plaintiff offers now to establish a different date from that which he formerly contended for. Again, it is a rule, that if the new testimony goes to a matter which was in issue at the former hearing, a bill of review shall not be allowed upon that evidence. Hind’s Ch. Prac. 59; 4 Vin. Abr. 414, 409. In which last passage, it is expressly said, that “where a matter of fact was particularly in issue before the former hearing, though you have new proof of that matter, upon that you shall never have a bill of review.” But here, the date of the tender was in issue before, and the enquiry was directed to it expressly: Of course, the new testimony, going to the same point, will not support a bill of review. Besides, the new matter ought to be such as would of itself be sufficient to be the foundation of a decree. But, in the present case, the new matter would not of itself be considered as sufficient ground, whereon to afford relief. With respect to the second position, that the Court of Chancery cannot review a°nd reverse a decree of this Court, the truth of it must be obvious. For, the contrary doctrine involves this absurdity, that the inferior tribunal, whose judgments are subject to the control of this, may impeach and annul the judgments of this Court. On principle, therefore, the Court of Chancery cannot exercise such a power. It is true, that in Mitford’s Treat. 69, 3d Lond. ed. it is said, that the Court of Chancery, in Lngland, may review a decree of the House of Lords there; and in support of that opinion, he *cites [Barbón v. Searle,] 1 Vern. 416. But that case does not maintain the position; for the object of the bill there, was merely to enforce the discovery, in order that application might be made to the House of Lords; and the Chancellor only directed the defendant to answer, and ordered no further steps to be taken without leave of the Court. So that he did not decide that a bill of review would lie. Besides, the matter alleged there, was entirely substantive and new; it happened after the decree, and would of itself have supported an action at law; or an original bill in equity: T.o which last, it was actually assimilated in the argument. That authority, therefore, proves nothing against the principle contended for by us. But our position was expressly recognized and established by this Court in the case of White v. Atkinson, 2 Wash. 94; in which it was held, that the Chancellor could not alter the decree of this Court.
    Williams, contra.
    The Chancellor may grant a' bill of review to a decree of this Court, whenever there is a new case made by the new testimony in the cause, as was the case in the present instance; and it ought to be so upon principle; for, it would be monstrous, if a man was to be precluded from his right, merely because he had not the benefit of testimony, which he knew nothing of, until after the decision of his cause. Such a case ought to be relieved; but, unless the Chancellor can do it, there will be a total failure of redress: for, this Court can institute no proceedings for the purpose ; and, therefore, the Chancery must: Which is not attended with the absurdity insisted on, upon the other side; because the decree of this Court is remitted to the Chancery and made the decree of that Court: So that, in fact, it is his own decree that he reverses.
    But, there is no occasion to resort to that distinction; because, here is a new case presented, and *the relief is asked upon other facts than those which were decided on by this Court. In which respect, it differs from White v. Atkinson; because, there, the error was in the body of the decree. The point, relative to the tender being made, was not enquired into, until it was thought important, upon the opinion of this Court; and, therefore, an opportunity, for the investigation, ought to be allowed. The authorities are in favor of the practice. Mitford states it so expressly ; and the case of Needier v. Kendal & Hallet, 4 Vin. Abr. 413, confirms his opinion. Upon the power of the Chancellor, then, to grant a bill of review in cases of this kind, in general, there can be no doubt: And, if so, it was property exercised in the present case; because, the intention here, is not to contradict the former case, as in 2 Atk. S31, but to support it; and Hinde and Viner do not oppugn the right, as the point was not regularly put in issue before.
    Then, upon the merits: Picket v. Dow-dell, [2 Wash. 106;] Johnson v. Buffington, [lb. 116;] and Curo' v. Burns, [lb. 121,] contain the general principles; but these, upon examination, will not be found to militate against us: for, if the survey is the true date, still the tender was before it; and, therefore, the appellee can derive no benefit therefrom. The new depositions fix it in 1767: and, it is no objection, that the witnesses only speak of the plaintiffs own declarations; because, there being no dispute depending at this time, there was no temptation to misrepresent. There was a plain alteration of the dates in the first bill; and the witness is mistaken as to the abandonment. The advertisement could give no right to Bord Fairfax; and so the Court has often decided. In short, there was a tender of the fees, &c. before the survey, and that, according to the opinion of the Court in all the cases, was sufficient. Of course, the decree of the Court of Chancery ought to be affirmed.
    *Call, in reply.
    In White v. Atkinson, there was not even an alteration in the decree of this Court, but a mere extension of it, to an object which did not appear to have been contemplated by this Court. The case from 4 Vin. proves nothing, as it was, according to the statement there, a mere dismission of a petition to examine witnesses in the House of Bords, and therefore, is not like this. Besides, by recurring to Finch’s Reports, it will be found to have been merely a bill of discovery, like the casein Vernon, and that the Chancellor decided nothing, as to his power to grant a bill of review. With respect to the inconveniences spoken of on the other side, it is true they may sometimes exist, but they will be partial; and therefore, ought not to outweigh the general inconvenience, on the other side of the Court of Chancery’s perpetuating disputes, by granting re-hearings of the same cause. It is a circumstance of some weight too, that no direct British case, allowing such a bill, has been produced, or recollected by Mitford, whose knowledge of the doctrines of a Court of Equity is so extensive.
    Cur. adv. vult.
    
      
      Bill of Review. — See monographic note on ‘ ‘Bilííbof Review” appended to Campbell v. Campbell, 22 Gratt. 649.
      Laches — Northern Neck. — The principal case is cited in M’Clung v. Hughes, 5 Rand. 483.
    
   BYONS, Judge,

delivered the resolution of the Court as follows: “The Court not deciding at present, whether the Court of Chancery ma3r allow a bill of review, to reverse a decree of this Court, or the decree of the County Court, for new matter discovered after the decree was made, or is precluded therefrom, is of opinion, that the new testimony in this cause does not prove any material fact, which was not known to the appellee before the hearing of the original cause in the County Court, and that the new matter proved by the testimony aforesaid, is not sufficient ground for the reversal of the former decree of this Court. That, therefore, the decree of the High Court of Chancery was to be reversed, and the bill of review dismissed.”  