Page:United States v. Samperyac.pdf/17

134  Rh   Again, he says, "as far as I can ascertain what the court permits with regard to bills of review upon facts newly discovered, the decisions appear to be on new evidence, which, if produced in time, would have supported the original case, and are not applicable where the original cause does not admit of the introduction of the evidence; as not being put in issue originally."

The doctrine is to be found in Cooper's Pleading, 91. The author asserts "that 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 in issue." For this position he cites Cary's Reports, 82, and Ambler's Reports, 293. If these authorities are to be relied upon, they prove conclusively, that in the present bill, a good cause is made out for a review.

We are ready to admit, that in the two cases decided by the court of appeals of Kentucky, reported in Hardin's Reports, 342 and 454, a different doctrine seems to be established. But the rule as laid down by Chancellor Eldon, accords better with our views of what the rule ought to be, and accordingly we adopt it as intrinsically correct. But, admitting that the new matter must relate to something not before put in issue by the parties, still we think a case is made out for a bill of review.

It is certainly true that the district attorney, in his answer, denied all the allegations in the petition, and required the petitioner to produce proof of them; but, at the same time that he denied them, he stated that he was wholly uninformed as to their truth. It is like the answer of a guardian, denying the allegations of a bill on the ground of ignorance, whether they are true or false; and such answer has been held insufficient to dissolve an injunction. Apthrope v. Comstock, 1 Hopkins, Ch. Rep. 143; Roberts v. Anderson, 2 Johns. Ch. Rep. 202.

By this general denial of the title of the petitioner, no special fact in relation to that title was put in issue. The district attorney made no allegation that the title papers of the petitioner were fraudulent or forged. He could not make such an averment at the time he filed his answer, because he was wholly uninformed as to the authenticity of those papers, and, on that ground, required that they might be proved.