Page:Federal Reporter, 1st Series, Volume 7.djvu/548

 586 FBOEBAIi BEPOBTSB. �subject was again presented to the United States supreme �court on a demurrer to a bill of review. After pointing out �the rules as to motions for rehearing, etc., and giviug clearly �the views of the court on that and kindred questions of prac- �tice, the court says: �"To avoid misap prehension in what we have said with regard to the proceedings on a bill of review, it will be observed that, in this case, the bill is a pure bill of review, containing no new matter, such as an allega- tion of newiy-discovered evidence, or anything else of an original char- acter, admissible in such a bill. What we have said is specially applica- ble to the case before us. Bills containing new matter, of courae, are in the nature of original bills, so far f orth as such new matter is concerned, and admit of an auswer and a replication, and proceedings appertaining to an issue of fact ; but only as it relates to the truth and sufflciency of such new matter, and the propriety of its admission for the purpose of opening the decree in the original caiise. If decided to be foiinded in fact, sufflcient to ailect the decree, and properly admissible, the original decree will be opened, and, if necessary, a new hearing had ; but if not so found, the bill of review will be dismissed, and the original decree will stand. But even in this case, as well as in that of a pure bill of review, the evidence in the original cause cannot be discussed for the purpose of questioning the propriety of the original decree, as based on such evi- dence. It can be adverted to, if at all, for the purpose of showing the relevancy and bearing of the new matter sought to be introduced into the cause." �There are many other cases cited by defendant's counsel which serve to illustrate the doctrine: Dexter v. Arnold, 5 Mason, 315; Thomas v, Harvey, 10 Wheat. 146; Woods v. Munn, 2 Sumn. 316; Hollingsworth v. McDonald, 2 Harr. & J. 230 ; Jenkins v. Eld/ridge, 2 Story, 299 et seq, ; Massie v. Graham, 3 McLean, 41 ; Hughes v. Jonas 2 Md. Ch. 289 ; Lan- sing V. Aibany Ins. Go. Hopkins, 102; Barker v. Barker, 2 Woods, 241; Burts v. Heard, 11 Heisk. 472; Cote v. Miller, 32 Miss. 89; DanieH's Ch. PI. § 1578; Livingstone v. Noe, 1 Lea. 55. �The doctrine stated by the United States supreme court, fortified as it is by the numerous cases cited, must govern the action of this court. There is no new matter set up which might not have been presented at the final hearing, if ordinary diligence had been exercised; and, indeed, there is no new matter stated in the bill of review, Hence, the only question is as to errors apparent of record. No such errors ��� �