Davis v. Speiden
104 U.S. 83 (1881)

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U.S. Supreme Court

Davis v. Speiden, 104 U.S. 83 (1881)

Davis v. Speiden

104 U.S. 83




1. The rule is administrative, rather than jurisdictional, that no bill of review shall be admitted unless the party first obeys and performs the decree, and "enters into a recognizance, with sureties, to satisfy the costs and damages for the delay if it be found against him."

2. No special license of the court is required to file a bill of review for the correction of errors on the face of the record.

3. A., without performing a decree rendered against him, filed, in the Supreme Court of the District of Columbia such a bill of review. A demurrer thereto was, at a special term, overruled and an appeal taken. Held that the court en banc erred in requiring him to perform the decree or submit to the dismissal of his bill, as, by his uncontradicted affidavit, he had brought himself within the operation of that exception to the rule which, in case of poverty, want of assets, or other inability, dispenses with performance.

The facts are stated in the opinion of the Court.

MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.

This is a bill of review for error apparent on the face of the record, and we think with the court below that on the merits it presents a case for reversal, because the averments in the original bill were not sufficiently precise and definite to warrant a decree such as was rendered, without proof. The only

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question, therefore, is whether the court was right in dismissing the bill because the decree had not been performed.

One of Lord Bacon's ordinances "for the better and more regular administration of justice in chancery, to be daily observed, saving the prerogative of the court," was that "no bill of review shall be admitted, or other new bill to change matter decreed, except that the decree be first obeyed and performed," save only where the act decreed to be done would extinguish a party's right at common law. Bacon's Law Tracts 280. This ordinance is the foundation of the practice not to entertain bills of review until the decree to be reviewed has been performed, or its performance excused, the object being, as was said by Chancellor Kent in Wiser v. Blachly, 2 Johns. (N. Y.) Ch. 290,

"to prevent abuse in the administration of justice, by the filing of bills of review for delay and vexation, or otherwise protracting the litigation to the discouragement and distress of the adverse party."

That this ordinance was intended for the regulation of procedure rather than to limit the jurisdiction of the court, seems to us apparent, because not only on its face the "prerogative of the court is saved," but as early as 1632, in Cock v. Hobb, 5 Russ. 235, a bill of review having been filed without performance of the decree, the cause was permitted to proceed on giving security for the debt which was decreed to be paid. Afterwards, in 1674, in Savill v. Darrey, 1 Ch.Cas. 42, where to a bill for the review of a decree for a large sum of money the rule was pleaded "that the defendant ought first to pay the money, before the bill should be brought into court," the Lord Chancellor said, "Let him give good security for the money, and we will dispense with the rule." Again, in 1682, in Williams v. Mellish, 1 Vern. 117, where a motion was made that proceedings on a decree be stayed until a bill of review could be heard, it was ordered that the decree should be performed before any bill of review would be allowed,

"unless the plaintiff . . . will swear himself not able to perform the decree, and will surrender himself to the Fleet, to lie in prison until the matter be determined on the bill of review."

Afterwards, during the year 1684, in Fitton v. Macclesfield, 1 id. 264, on a motion that a bill of review might be admitted without the

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payment of costs in a former suit, amounting to

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