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must not, therefore, be induced by any persuasion as to the fact that the defend. ant had originally a demand which he clearly could have sustained to break down rules established to prevent general mischief at the expense even of particular injury.

See Bingham v. Dawson, 1 Jac. 243, where Lord Eldon, in dismissing a peti. tion for leave to file a supplementary bill in the nature of a bill of review, said: "If it is to be laid down that a party may go on to a decree without looking over the defense, and may then make application of this kind, there will never be an end to them. It is not a case of a search made, and a miscarriage in that search, but it does not appear that there was any search at all.”

Mr. Chancellor Kent also states the same rule emphatically in Wiser v. Blacbly, 2 Johns. Ch. 488, 491; and it is laid down also in numerous decisions of the supreme and circuit courts.

It is equally well settled that the alleged newly-discovered evidence must be so material that it would unquestionably lead to a reversal of the judgment, and that it must not be cumulative.

These questions of "diligence" and “materiality” are preliminary questions, which must be settled by some court before leave to file a bill of review is granted. After leave has been once granted, the bill is filed, and the contest proceeds as to the truth and sufficiency of the new evidence. We submit that it is our undoubted right to be heard on these preliminary questions, and we fully believe that we can show absolute lack of diligence on the part of the defendants, if not full knowledge of the “new” facts from the beginning. We desire the opportunity also to file counter affidavits on this question of diligence, as Mr. Justice Story stated was the proper practice, in Dexter v. Arnold, above cited. And it seems obvious that this question should be settled before leave to file is granted; it is plainly a preliminary question affecting the right to file the bill at all.

Whether, in the case at bar, this investigation of the right of the defendants to file a bill of review should be made by the circuit court of appeals, or by the circuit court, it is not necessary for us to urge; but we submit that, if this appel. late court declines to decide the question, the court clearly should not give the defendant absolute leave to file a bill of review. Its mandate should merely give the lower court power to entertain an application for leave to file a bill of review, in order that we may there have the opportunity of addressing ourselves to the discretion of the court, and showing that this is not a case where a bill of review should be allowed to be filed.

As the question of practice is, however, an interesting and novel one to this court, we will say that, upon as thorough an investigation of cases as the time allowed to us has permitted, we belieye that the proper practice is that it is the appellate court which should exercise its discretion in granting the leave, after bearing counsel on both sides on the preliminary questions of diligence and materiality. The various citations which we have given above from text books and cases as to the rules to be followed in granting or refusing leave to file, make do distinction whatever between courts of appeal and courts of the first instance, and it would appear that whichever court is properly applied to for leave to file (in this case, the appellate court) has the consequent duty of exercising the discretion. The cases of Southard v. Russell, 16 How. 547; U. S. v. Knight's Adm'r, 1 Black, 488; Kingsbury v. Buckner, 134 U. S. 650, 671, 10 Sup. Ct. Rep. 638,- where it is said that permission to file a bill of review in a case decided by the supreme court should be given by the supreme court, throw no particular light upon the question how the permission is granted. But in the iwo cases which we have discovered, in which a petition for leave to file a bill of review was filed in the supreme court, that court covsidered the questions of diligence and materiality. heard arguments on both sides, and rendered opinions denying the motion for leave. It would seem that these cases are direci precedents for this court. Rubber Co. v. Goodyear, 9 Wall. 805; Purcell v. Miner, 4 Wall. 521.

In the former case the court quotes the rule as to diligence, and then says:

“Whether such an application shall be granted or refused, rests in the sound discretion of the court. The requisite leave is never a matter of right.'

The subject of bills of review is thoroughly considered in the recent case of Kimberly v. Arms, 40 Fed. Rep. 548, 553, where Judge Jackson says:

“The court rendering the decree should properly exercise the discretion of granting or withholding leave to the unsuccessful party to file a bill of review to impeach or set it aside, either for error apparent or for new matter. The inferior court should not be called upon to exercise such discretion or to grant such

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leave in respect to the decree of a superior court, over whose judgment it possesses no control or right of supervision.”.

It would seem, therefore, that the appellate court should determine whether leave should be granted after a full consideration of the questions which affect its discretion, and not grant the application as a matter of course, leaving the question to the lower court.

We do not. at this stage of the case, includo in this brief an argument on the question of defendants' diligence, because, owing to the strong intimation from the court at the argument, we do not feel certain that they will determine this point. If, however, this court shall decide (as would seem to be the correct prac. tice from the cases above cited) that it will exercise its discretion in granting leave to file a bill of review, then we hereby respectfully ask to be heard or to file a brief as to the showing made by the defendants' affidavits upon the question of diligence. We desire to cite the decisions of Judge Blatchford, Judge Wallace, and others on reopening patent causes by a bill of review. We believe that we can show from defendants' affidavits such an absolute lack of the dili. gence required as will induce the court to decline to reopen this case, which has been pending for five entire years, when the alleged facts now brought forward as to an alleged “prior use" were either known by the defendants, or perfectly accessible to him during the entire period. If this court shall entertain the ques. tion of diligence, we also ask for leave, under the practice sanctioned by Mr. Justice Story in this circuit, to introduce counter affidavits, to show absolute want of diligence on the part of the defendants. This is the only stage in the case when we can properly be heard upon this point.

We also shall desire to submit that, if leave be given to the defendants to file a bill of review, it must plainly be dependent upon the payment of complainant's costs up to this stage of the case. This is not only equitable, but is the established practice when a case is reopened to admit alleged newly-discovered evi. dence. Judge Lowell settled the practice for this circuit in Henry v. Stove Co., 5 Ban. & A. 108, 111: “The patent having been sustained at the first bearing, the complainant should have his costs to the time when the rehearing was ordered.”

William A. McLeod, for appellees. Upon a consideration of the case, it would seem that the appropriate relief for the petitioners is by a bill of review in the circuit court. 1 Fost. Fed. Pr. $ 355, p. 672; Story, Eq. Pl. S 403 et seq., (see section 412.)

The circuit court cannot entertain such a bill when the case has been heard and decided by the appellate court without leave of the latter court. Southard V. Russell, 16 How. 570, and cases cited; U. S. v. Knight's Adm'r, 1 Black, 489; Kimberly v. Arms, 40 Fed. Rep. 548,--where the practice is fully discussed by Judge Jackson; Story, Eq. Pl. $ 419, (see note.)

It is proper, therefore, for this court to grant such leave in this case upon this petition. That a prayer for general relief will enable the court to grant any relief appropriate will not be disputed. Id. $ 40.

The motion of the respondents to strike the petition and affidavits from the files ought not to be granted

(1) Because the petition can only be taken from the files for irregularities in the petition itself. Wood v. Griffith, 1 Mer. 35; 1 Fost. Fed. Pr. & 352, middle p. 667. The regularity of the petition is not questioned on this ground.

(2) If relief is granted under the petition, the petition ought not to be stricken from the files.

It is submitted that the petitioners are entitled to such action by this court as will preserve their rights to proceed by way of a bill of review in the circuit court, and that their petition and affidavits ought not to be taken from the files.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

PER CURIAM. Ordered, that whereas, it appears from the sug. gestion of the counsel for the appellees made in open court, and accompanied with a verified petition and affidavits, that the appellees conceive that they will have just cause for application for leave to file a bill of review and to proceed with such bill, this court reserves to the appellees liberty to file such application, and proceed thereon and on such bill of review in the circuit court as the circuit court may determine; and this order shall form a part of the mandate in this cause, which shall issue forthwith.

HARPER V. HARPER et al.

Circuit Court of Appeals, Third Circuit. December 5, 1892. RES JUDICATA-QUESTIONS WHICII MIGHT HAVE BEEN LITIGATED.

A bill was filed in the federal circuit court in New Jersey for the cancellation or reformation of an agreement alleged to have been fraudulently procured. Complainant set forth that, desiring to constitute his divorced wife his agent for the management of his property, and to make certain provisions for her support, but with no intention of thereby recognizing any existing marital rights, but for the sake of conciliation, he requested his counsel to draw an agreement containing such provisions, but, on the contrary, such agreement was fraudulently so written that it constituted in law a separation agreement. which recognized the claims of his divorced wife, and invested her with the power to sign deeds as such. To this bill defendant pleaded that a bill bad been filed in the chancery court of New Jersey to restrain complainant from collecting rents, in violation of such agreement, and for an accounting, etc.; that complainant answered, admitted the execution of the agreement, but averred that defendant had failed to keep up repairs, so that the rents had fallen off, and that in consequence he was unable to pay the annuity provided for; that complainant also tiled a cross bill, which defendants answered; that a final decree was entered upon the issues raised, dismissing the cross bill and sustaining the agreement.' Held, that the decree of the New Jersey court was conclusive of the validity of the agreement; for plaintiff was then in possession of all the facts, and might bave litigated thein in that suit. Appeal from the Circuit Court of the United States for the District of New Jersey.

In Equity. Bill by John Harper against Ellen Harper and Gilbert Collins for the cancellation or reformation of an agreement alleged to have been fraudulently procured. Bill dismissed. Plaintiff brings error. Affirmed.

John A. Dennin, for appellant. Charles L. Corbin, for appellees. Before ACHESON and DALLAS, Circuit Judges, and BUFFINGTON, District Judge.

BUFFINGTON, District Judge. This is an appeal by John Harper from a decree of the circuit court of the district of New Jersey, dismissing a bill filed by him against Ellen Harper and Gilbert Collins. In his bill Harper alleged that in 1882 he had been, by a decree of a Dakota court, divorced from his wife, Ellen Harper. That thereafter he tried to convey his real estate in New Jersey, but was prevented by her setting up a claim of dower thereto. That on consultation with Gilbert Collins, who had been his legal adviser, he was told she had no valid claim, but was advised to make an agreement with her which would constitute her his agent for the management of his realty, but would in no way recognize a subsisting relationship of husband and wife between them; that this would end all disputes. That, relying on Collins' counsel, he consented to make an agreement whereby Ellen Harper should receive from the rents of his property an annuity of $1,200 for herself and their children, and the further sum of $550 to be by her used in the repair of his houses, Harper paying taxes and water rents. That, under the belief and on the representation that it embodied the terms proposed, Harper, on June 15, 1883, signed the agreement which Collins drew. That in June, 1887, he found the paper was not as represented; that it was a separation agreement between husband and wife, in the form in use in New Jersey, which recognized the claims of Ellen Harper as his wife, gave her a right to sign deeds as such, and did not require her to use the $550 in repairs. That there had been inserted, without his knowledge or consent, a clause making the annuity a lien on certain property on Henderson street, Jersey City, and another for the signing of deeds by Ellen Harper to bar dower in certain specified real estate. That he supposed Collins had been acting as his counsel, but then first learned that he had signed the agreement as trustee for Ellen Harper. That he was told the agreement provided for the substitution of another person in place of Ellen Harper, at his option, to collect the rents, but instead thereof the power of substitution placed in the agreement was only in case she were unwilling or unable to act. He therefore, by his bill, prayed for the cancellation of the agreement, or its reformation in accordance with the terms agreed on and specified as above.

To this bill the defendants pleaded that on July 1, 1887, they had filed a bill in chancery in New Jersey to restrain John Harper from collecting the rents of his real estate in violation of said agreement, (a copy of which they annexed to their bill,) prayed for an accounting by him, and that the lien of Ellen Harper, provided for in the agreement, be established on the premises specified, and the agreement be specifically enforced. That John Harper appeared, answered the bill, admitted the execution of the agreement, but averred that Ellen Harper had not kept up repairs, so that the rents had fallen off, and he was therefore unable to pay the annuity or taxes. That she had refused to join in the conveyance of real estate provided for in it, whereby the agreement was forfeited. That John Harper had also filed a cross bill in which he alleged he had been advised by Collins and Corbin, his counsel, to fix the annuity at $1,750, instead of $1,200; that, on the preparation of the agreement, he found a clause for securing the annuity by mortgage, which he required should be stricken out, and which he supposed was done; that he insisted on the substitution of a clause providing for the appointment by him of some other person to take charge of the premises, if Ellen Harper should fail to properly perform her duties, and he supposed it had been done; that she had refused to join in a conveyance of certain premises; and prayed the agreement be set aside and decreed void. That to this cross bill answers were filed, which alleged the agreement was the result of a compromise; that Collins and Corbin had acted as counsel for Ellen Harper; that Harper had acted for himself; denied he regarded them as his counsel; averred the terms of the agreement were made between John Harper and Ellen Harper themselves; that on report of them to counsel they were fully discussed, and the agreement then drawn; and that it was signed by John Harper and Ellen Harper after full

explanation, and after changes had been made at his instance, and others, proposed by him, had been refused by Ellen Harper's counsel. That, on hearing of the issues thus raised, a final decree was made by Hon. Alexander T. McGill, chancellor of New Jersey, on April 24, 1888, as follows:

“First. That the cross bill of the said John Harper against Ellen Harper and Gilbert Collins, her trustee, should be, and the same thereby was, dismissed, without costs, so far as it prayed relief against said agreement. Second. That the said agreement bearing date the 15th day of June, X. D. 1883, made between John Harper, of the first part, Ellen Harper, of the second part, and Gilbert Col. lins, trustee for Ellen Harper, of the third part, was valid and binding upon said John Harper, and that the same, and so much thereof as provided that the said John Harper should pay to Ellen Harper seventeen hundred and fifty dollars per year for life. for the support of herself and the children of herself and John Harper, and directed the said payment on the two houses, 472 and 474 Henderson street, constituted a valid lien in equity upon said houses for all sums then due to Ellen Harper, and for all sums thereafter to grow due to her under said agreement.

The circuit court “being of the opinion that the plea is well founded in point of law, and presents a complete defense, to the complainant's bill," sustained it, and on March 22, 1892, dismissed the bill, with costs.

This action is assigned here for error. A careful examination of the pleadings discloses none. On the contrary, it shows an attempt, under the guise of additional allegations, to raise a second time an is. sue which had already been passed on by a court of competent jurisdiction, between the same parties. The execution, the validity, the binding force, of this agreement, were passed upon by the New Jersey chancery court. Ellen Harper and Collins, her trustee, alleged its validity, made profert of it, and prayed specific performance of it by John Harper. In his answer Harper alleged she had forfeited her rights under it, and in his cross bill went still further, and prayed it be declared void. He then had the opportunity to set up all the grounds of relief on which he bases his present bill. At that time he knew all the facts he now alleges. He says in his bill he learned them in June, 1887, and the former bill was not filed until July following. That he may not have then presented some phases of relevant evidence, or not in as strong a light; that he may not have stated his grounds of relief as fully as now,-cannot avail him to procure a retrial of substantially the same issue in another court. He had the opportunity of doing so; the facts were in his possession; and “in legal theory the conclusive presumption is that all matters susceptible of being presented were passed upon and decided by the court at the time of rendering a judgment.” Belvidere v. Railroad Co., 34 N. J. Law, 196. To sift the evidence, to analyze the reasons, which led to it, would avail nothing. The question is not, why was the judgment entered ? but simply whether a judgment was entered by a court of competent jurisdiction between the same parties on the same issue. “The allowance of such a plea as is set up in this case is based on the maxim, 'expedit reipublicae ut sit finis litium;' and the test question is whether the parties had in the former suit full opportunity to litigate the subjectmatter of the present one.” Gardner v. Raisbeck, 28 N. J. Eq. 71. Tried by this test, the bill was rightfully dismissed by the circuit

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