
    Triplett v. Wilson & al.
    [April, 1806.]
    Bills of Review — Grotinds—A 1)111 of review must suggest error in law, or newly discovered matter, or it cannot toe sustained.
    A bill having been formerly filed in the court of chancery, to foreclose a mortgage of a tract of land and a mill in the county of Loudoun, executed by the appellant in the year 1774, to secure a debt due Dunlop & Son & Co. he set up in bar of the demand a payment into the treasury, under the act concerning debts due British subjects. The accounts between the parties were referred to commissioners, and an interlocutory decree was made for the sale of the mortgaged property. From this decree the defendants appealed, and it was affirmed by the court of appeals.
    The complainant having agreed to sell the mill and part of the land to Bernard Hough for ¿1000, Wilson, the agent of Dunlop & Son, on the 19th March, 1798, signed a writing, whereby, in consideration of receiving a part of *the ^1000 in hand, and on condition of Hough’s giving a security for the residue, he agreed “to relinquish the mortgage and to look to_ Triplett for any balance that might be due from him.”
    Hough made good his engagements.
    Harrison the agent (under Wilson) for Dunlop & Co., being about to proceed to a sale under the decree, Triplett filed a bill stating that, by mistake, his counsel omitted to claim an abatement of interest during the war, and praying that interest during the war, and the sum paid Hóugh might be credited against the decree; and that the defendants might be injoined from selling the mortgaged subject.
    Wilson and Harrison answered severally, insisting, that interest during the war ought not to be deducted from the debt, and denying that the part of the mortgaged subject, which is in the hands of Triplett, ought to be released. It is admitted that the creditors were, and are, British subjects.
    The bill was dismissed with costs on a hearing, and from this decree the present appeal was taken to the court of appeals.
    Wickham, for the appellant.
    This is not, strictly speaking, a bill of review; but a cross bill in nature of a bill of review; and the object was to bring all the facts and the rights of the parties i'nto the pending cause. The objection, therefore, that it is a bill of review to an unfinished cause, has no weight. The appellant was entitled to a deduction of interest during the war; for the mortgagees were British subjects, and absent out of the state, as the report of the commissioner shews: which suspended the interest, and gave the debtor a right to rebate it. M’Call v. Turner, 1 Call, 144; Brewer v. Buchanans, Hastie & Co., 3 Call, 22. And, as this point was not drawn into question in a former suit, the decree, in that, is no bar to the relief sought by the present bill, especially as to the decree to foreclose was interlocutory only; for the affirmance of that decree, by this court, will make no difference, as a point not before the *court at the time of the first decision,' is a good ground for a bill of review. Price v. Campbell, in this court, April term 1804. The mortgaged property was exonerated by the agreement; for the creditor agrees “to relinquish the mortgage, and to look to Triplett for any balance that might be due from him:” which amounts to a clear discharge. There ought to have been an account directed; and that should now be done; upon the taking of which, the interest during the war, may be deducted.
    Nicholas, attorney general, contra.
    The court of chancery could not allow a bill of review to a decree of this court, as there was no additional evidence. Otherwise, the chancellor may re-examine the very point of law, or fact, decided by this court. If there had been any new matter, the bill should have stated, that it had been discovered since the former decree was made, 1 Com. Dig. 62; but no such discovery is pretended; and therefore the bill falls to the ground. It is not shewn, that the mortgagees were out of the country; for the commissioner’s report is not evidence upon that point, as it was not referred to him. But, be that as it may, the debtor is not entitled to a deduction of the interest during the war; for he consented to pay it, and his agreement binds him. There is no distinction between this and any other bill of review; for it is framed according to the usual form of such bills, and prays relief in the same manner. But a bill of review does not lie to an interlocutory decree, because the errors may be corrected at the final hearing; and, for the same reason, it cannot be defended as a cross bill, as it was unreasonable to put the appellee to the costs of a cross suit to obtain what he might have had without, if he was entitled to it. Mitf. Pleadings, 36. The cause was heard on the bill and answer; and, as the answer denies the pretended release, it cannot now be set up.
    Wickham, in reply.
    The point, relative to the interest during the war, was not urged when the interlocutory decree *was made; for the payment into the treasury was the only ground relied upon; and, therefore, the decision, at that time, did not preclude the mortgagor from a right to have the decree reviewed. This is not a bill of review in form and structure; but, if it were, it would be unimportant. For it is immaterial, whether relief was sought that way, or by motion at the final hearing; because the appellant, if he was entitled to a deduction of the interest should obtain it some how; and it will surely not be an objection to this proceeding, that it afforded the mortgagee a better opportunity of defending himself by an answer, than he could have had on a motion. The costs can make no difference; for they are under the control of the court, and may be denied, or the debtor ordered to pay them, as may appear to be proper. The agreement, as it is called by the appellee’s counsel, to pay the interest, was merely a statement of the decree, and not an assumpsit.
    Cur. adv. vult.
    
      
      Bills ot Review— Grounds. — See foot-note to Carter v. Allan, 21 Gratt. 241, citing the principal case; also, monographic note on “Bills of Review” appended to Campbell v. Campbell, 22 Gratt. 649.
    
   LYONS, President,

delivered the resolution of the court, as follows:

The rules respecting bills of review are clear; and it has long been settled, that a bill of that kind can only be brought upon two grounds, 1. Error, in law, appearing upon the body of the decree. 2. The discovery of new matter, which could not, in consequence of the party’s ignorance that it existed, have been used at the time of making the decree; and this should be verified by the oath of the plaintiff.

Neither of these apply to the present case.

Not the first, because no error in law appears in the body of the decree; for, as no d<scount of the interest during the war was claimed in the court of chancery, nor any exception filed to the commissioner’s report upon that ground, the chancellor was not under any obligation to allow the defendant what he did not ask for.

Not the second, because no new fact is alleged to have been discovered. Por the war interest was a question with *which the plaintiff in the bill of review was fully acquainted at the time; and, although the bill states that his counsel omitted to claim it through mistake, that can be no reason for a re-examination of the cause, as it is not suggested that there was any thing which occasioned the mistake.

There is no ground for treating this as a cross bill; for it was exhibited as a bill of review; and has the form, structure and prayer of all other bills of review.

But the case it makes is no more than this, that the plaintiff, with a full knowledge of the supposed right, omitted to have it insisted upon at the first hearing; and then, after the interlocutory decree has been affirmed here, comes to the court of chancery to have his omission corrected, without the suggestion of any new fact to warrant it. Such a practice would be productive of very great inconveniences; and ought not to be tolerated.

The court is, therefore, unanimously of opinion, that the chancellor did right in dismissing the bill; and that the decree ought to be affirmed.  