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Irwin v. Meyrose.

founded on some error apparent upon the bill, answer and other pleadings and decree; and that you are not at liberty to go into the evidence at large in order to establish an objection to the decree founded on the supposed mistake of the court, in its own deductions from the evidence."

In the case of Kennedy v. Georgia State Bank, 8 How. 586, the United States supreme court again referred to the doctrine governing bills of review, in this language: "This bill has been considered by some of the defendants' counsel as a bill of review. But is has neither the form nor the substance of such a bill. Since the ordinances of Lord Bacon, a bill of review can only be brought for 'error in law appearing in the body of the decree or record,' without further examination of matters of fact, or some new matter of fact discovered, which was not known, and could not possibly have been used at the time of the decree." The same question underwent review in Putnam v. Day, 22 Wall. 60. "We think the rule to be well established, and a wholesome one, that

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the proofs cannot be looked into on a bill of review. This was so expressly held in Whiting v. Bank of the United States. It is true that in our practice the final decree does not contain a summary of the facts as it did in the English practice, which summary was examinable on a bill of review; but, to countervail this absence of statement in the decree, we have adopted the practice of looking back of the decree into the whole record of the pleadings and the proceedings, including orders, master's report, etc., together constituting what is generally regarded as the record in the cause, and necessary to be examined in order to a proper understanding of the decree itself. This makes a record similar to that of a common law action, the decree being the judgment of the law upon the allegations of the parties, and the conclusion which the court deduces from the proofs. But the conclusions of fact deduced from the proofs are not of a report made by a master or commissioner. The eightyspread upon the record in extenso, unless through the medium sixth rule in equity, adopted by this court, has abolished the

Irwin v. Meyrose.

recital of the pleadings and proceedings in the decree, and has prescribed the form in which it shall be couched, as follows: This cause came on to be heard at this term, and was argued by counsel; and thereupon, in consideration thereof, it was ordered, adjudged and decreed as follows, viz.: [Here inserting the decree or order.] The decree, it is true, may proceed to state conclusions of fact as well as of law, and often does so, for the purpose of rendering the judgment of the court more clear and specific. The record thus made up constitutes the basis of examination on a bill of review, but it never contains the proofs adduced in the cause." In the case of Buffington v. Harvey (5 Otto, 99), the same 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 giving clearly the views of the court on that and kindred questions of practice, the court says: "To avoid misapprehension 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 allegation of newly discovered evidence, or anything else of an original character, admissible in such a bill. What we have said is specially applicable to the case before us. Bills containing new matter of course are in the nature of original bills, so far as such new matter is concerned, and admit of an answer and a replication, and proceedings appertaining to an issue of fact; but only as it relates to the truth and sufficiency of such new matter, and the propriety of its admission for the purpose of opening the decree in the original cause. If decided to be founded in fact sufficient to affect 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 evidence. It can be adverted

Irwin v. Meyrose.

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 Sumner, 316; Hollingsworth v. McDonald, 2 Harr. & J. 230; Jenkins v. Eldridge, 2 Story, 299 et seq.; Massie v. Graham, 3 McLean, 41; Hughes v. Jonas, 2 Md. Ch. 289; Lansing v. Albany Ins. Co. Hopkins, 102; Barker v. Barker, 2 Woods, 241; Burts v. Пeard, 11 Heisk. 472; Cole v. Miller, 32 Miss. 89; Daniells' Ch. Pl. sec. 1578; Livingstone v. Noe, 1 Lea, 55.

It is true the

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 appear. The case having been set down for hearing, the same was heard at the proper time on the issues as made by the pleadings and exhibits. The plaintiffs offered no proofs, and had taken none, tending to show any infringements by the defendants, and hence the court was bound to dismiss the bill. defendants had raised by their answer the question of the validity of plaintiffs' patents, and had filed the so-called anticipatory patents, of which statutory notice had been given, said patents being sworn copies of the originals. The court on hearing dismissed the bill. It was not necessary for it to inquire into the validity of the plaintiffs' patents, because, if said patents were valid, no evidence that defendants had infringed them was offered. If the court had gone further and looked into the plaintiffs' patents and the alleged anticipatory patents, the same conclusion must have been reached. There is no error of record, and no new evidence which can serve as a basis for a bill of review in the light of the authorities supra.

The demurrer is sustained and the bill dismissed.

Irwin v. Meyrose.

NOTE. The special object of a bill of review as indicated by Lord Bacon in his ordinances, published in 1618, and since followed in the courts of chancery both in England and the United States, confines its operation to (1) errors of law appearing in the body of the decree or record, without further examination of matters of fact, or (2) to some new matter of fact which was unknown or could not possibly have been used at the time of the decree. The errors of law being confined strictly to such directions in the decree as call for a disposition of matters decreed, as opposed to some statutory provision or rule of law or equity (as, for instance, if a decree, setting aside a will and declaring that the deceased died intestate, should further proceed and direct a disposition of effects, contrary to the statute of administration and laws of distribution in such behalf), there would be error in law appearing on the face of the decree, and the same could therefore be reached and corrected by a bill of review.

Concerning the facts constituting new matter upon which a bill of review may be predicated, it is established that, although the proof made in a bill of review is sufficient to establish the ground set up in the original bill, it would be of no avail, unless there be good ground shown for opening and reviewing the former decree. Carter v. Stennett, 10 B. Mon. 250. A decree of the court of chancery dismissing the bill of complainants where the cause has been set down for hearing, after replication, and an order closing the proofs, is a bar to a subsequent suit for the same cause between the same parties, although no proofs were, in fact, taken. And such decree was taken by default at the hearing. Ogsburg v. LaFarge, 2 Comst. 113. If, therefore, the decree does not contain a statement of the material facts on which the decree proceeds, it is plain that there can be no relief by a bill of review; but only by appeal to some superior tribunal. Story's Eq. Pl. 407; Daniell's Ch. 1631 n.

It may be therefore broadly stated, that where there is no such error as alluded to, and no new matter sufficient to overcome the regard of courts for the repose of things adjudicated, as well as being sufficient to alter the decree itself, there can be no relief upon a bill of review.

Courts of chancery usually require a would-be complainant in a bill of review to first establish his right thereto by petition supported by affidavits, setting up the reasons relied on for relief; this proceeding under the English practice is termed a caveat; with us, however, granting leave to file a bill of Such a nature is discretionary with the court, whether upon preliminary petition or otherwise, it being in the nature of an assignment of error coram nobis. The court, however, upon bill of review, has no authority to correct errors born of evidence, or to inquire, after decree passed, into the correctness of its conclusions; upon the evidence, the case of Putnam v. Day (22 Wall. 60), cited by Judge Treat in the foregoing opinion, establishes this doctrine beyond controversy. The mere propriety of a former decree cannot be questioned by bill of review; it is only where there is error on the face of it that such a bill can be sustained. Haight v. Homan, 8 Cl. & F. 324; Mitford v. Tyler, Pl. in Eq. 181; Lord Bacon's Ord. (1618); 1 Bland's Ch. 511. Fraud in

Poole v. Chicago, etc. R. Co.

procuring a decree in equity cannot be relieved against by bill of review, but the decree must be impeached by original bill charging the fraud. Couch v. Couch, 18 Ohio, 146. A decree will not be reversed upon a bill of review, because a defense existed of which the party neglected to avail himself. Gary v. May, 10 Ohio, 66. It is expressly declared that forgetfulness or negligence of parties or their solicitors, under no incapacity, furnishes no ground for a bill of review. 1 Harr. Practice in Chancery, 175; Franklin v. Wilkinson, 3 Mon. 112; Jones v. Pilcher, 6 Mon. 425. It is not sufficient to show that injustice has been done, but that it has been done under circumstances which authorize the court to interfere; because if a matter has already been investigated according to the common and ordinary judicial rules, a court of equity cannot take upon itself to enter into it again. Bateman v. Willoe, 1 Scho, & Lefr. 204; Wensten v. Johnson, 2 Mon. 305.

E. J. O'BRIEN.

1. JURORS

POOLE v. CHICAGO, ETC. R. Co.

(District of Iowa. January, 1881.)

IMPROPRIETY OF.- - An impropriety of jurors which did not prejudice the verdict is not ground for setting it aside and awarding a new trial. 2. SAME-MISCONDUCT-DISCUSSION OF PENDING CASE BY.-Discussion by a juror outside of the jury room, of a case pending and undecided before him, is the clearest evidence that he is not an unbiased and impartial juror, notwithstanding his disclaimer of the influence of such discussion upon his

own mind.

3. SAME TEST OF MISCONDUCT FATAL TO VERDICT.-The test of what impropriety is to be considered as prejudicing the verdict is the answer to this question: Was the misbehavior of the juror such as to make it probable that his mind was influenced by it, so as to render him an unfair and prejudiced juror?

Motion for new trial.

Hagerman, McCrary & Hagerman, for plaintiffs.
H. H. Trimble and J. W. Blythe, for defendant.

Love, District Judge, delivered the opinion of the court:

This

case was tried by jury at the last January term in

Keokuk. The jury gave a verdict for the defendant. The

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