A bill of review, in a chancery case, cannot be maintained where
the newly discovered evidence, upon which the bill purports to be
founded, goes to impeach the character of witnesses examined in the
original suit.
Nor can it be maintained where the newly discovered evidence is
merely cumulative, and relates to a collateral fact in the issue,
not of itself, if admitted, by any means decisive or controlling:
such as the question of adequacy of price, when the main question
was, whether a deed was a deed of sale or a mortgage.
Where a case is decided by an appellate court, and a mandate is
sent down to the court below to carry out the decree, a bill of
review will not lie in the court below to correct errors of law
alleged on the face of the decree. Resort must be had to the
appellate court.
Nor will a bill of review lie founded on newly discovered
evidence, after the publication or decree below, where a decision
has taken place on an appeal, unless the right is reserved in the
decree of the appellate court, or permission be given on an
application to that court directly for the purpose.
Being a continuation of the case of
Russell v. Southard
and others, reported in
53 U. S. 12 How.
139, it is proper to take it up from the point where that report
left it.
In
53 U. S. 12 How.
159 it is said,
"After the opinion of the court was pronounced, a motion was
made on behalf of the appellees for a rehearing and to remand the
cause to the circuit court for further preparation and proof, upon
the ground that new and material evidence had been discovered since
the case was heard and decided in that court. Sundry affidavits
were filed, showing the nature of the evidence which was said to
have been discovered."
The reporter abstained from stating the substance of these
affidavits in consequence of the following order, which was
endorsed upon them in the handwriting of MR. CHIEF JUSTICE
TANEY.
"The Court directs me to say that these affidavits are not to be
inserted in the report, as they implicate the character of
individuals
Page 57 U. S. 548
who can have no opportunity of offering testimony in their
defense. The reporter will merely state, in general terms, that
affidavits were filed to support the motion."
As the present case turned chiefly upon the contents of these
affidavits which were made the groundwork for the bill of review,
it becomes necessary to state them now. They were affidavits to
sustain the two following points:
1. That Dr. Wood, a witness for Russell was bribed either by him
or his attorney, Stewart; that Wood had in his possession a note
given to him by Stewart for about three hundred dollars, then past
due; that Wood had applied to a person named Addison to collect it
for him, and left the note in his possession for that purpose; and
that Wood had confessed to James J. Dozier, Esq., that the note had
been given to him for his testimony in the case.
2. The following affidavit of George Hancock.
"I, George Hancock, state that some short time previous to the
sale by Col. Gilbert C. Russell of his farm near Louisville, to
James Southard, he offered to sell it to me for five thousand
dollars, and he made the same offer to my sister, Mrs. Preston. I
thought it a speculation, and would have bought it but for the
reputation the place bore for being extremely sickly. He also
explained to me the reason why he had given so large a price for
the place, which it is not deemed necessary here to state, and
which satisfied me that he knew he was giving much more than its
value, at the time he made the purchase."
"GEORGE HANCOCK"
Upon these affidavits, the motion for a rehearing was made and
overruled, the opinion of the Court overruling the motion being
recorded in
53 U. S. 12
How. 158.
The mandate went down to the circuit court, and was there filed
at May term, 1852. The circuit court decreed that the conveyance
from Russell to Southard was a mortgage, and that Russell was
entitled to redeem; and in further pursuance of the opinion of the
Supreme Court that the case was not then in a condition for a final
decree in respect to the other defendants, it was remanded to the
rules.
At the same term, namely in June, 1852, Southard and the other
appellants moved the court for leave to file a bill of review of
the decree rendered at the present term, and in support of the
motion presented their bill, and read the following documents,
namely:
The affidavits of James Guthrie, Willett Clarke, Daniel S.
Rapelge, U. E. Ewing, Thomas G. Addison, George Hancock, Charles M.
Truston, John P. Oldham, J. C. Johnston, D. F. Clark, and of R. F.
Baird, and a paper purporting to be an extract
Page 57 U. S. 549
from a letter from Russell to J. W. Wing, and a copy of the deed
from G. C. Russell to Joseph B. Stewart. And the said Russell by
his counsel, opposed the motion, and objected that the grounds made
out were insufficient, and read in his behalf the documents which
follow: the affidavits of Elias R. Deering, Elijah C. Clark, Robert
F. Baird, J. B. Stewart, Philip Richardson and of Robert F. Baird,
a copy of the record of Burks against Southard, and a copy of the
opinion of the Supreme Court of the United States upon a new
hearing, with the affidavits attached thereto.
After argument, the court gave leave to the complainants to file
their bill of review; whereupon the defendant, Russell moved the
court to strike from the bill all that portion relating to
champerty and all that portion relating to the explanation of the
evidence of J. C. Johnston, by the introduction of his affidavits,
and all other parts of said bill which is designed to explain the
evidence already in the original record. The court overruled the
motion, but reserved all the questions of the competency and effect
of the matters the defendant moved to have stricken from the bill,
to be decided when they may be made in the progress of the cause,
or on the final hearing thereof.
In September, 1852, Russell filed his answer.
The substance of the bill and answer are stated in the opinion
of the court.
In May, 1853, the circuit court dismissed the bill with costs,
upon the ground that
"there is not sufficient cause for setting aside said decree of
the Supreme Court of the United States, entered here, according to
the mandate of said Supreme Court."
From this decree, the complainants appealed to this Court.
Page 57 U. S. 566
MR. JUSTICE NELSON delivered the opinion of the Court.
The present defendant, Russell filed a bill in the court below
in 1847, against the present complainant, Southard, and others, for
the purpose of having the deed of a large and valuable farm or
plantation, and a defeasance on refunding the purchase money
executed at the same time, declared to be a mortgage; and that the
complainant be permitted to redeem on such terms and conditions as
the court might direct. The cause went to a hearing on the
pleadings and proofs, and a decree was entered May term, 1849,
dismissing the bill. Whereupon the complainant appealed to this
Court, and, after argument, the decree of the court below was
reversed, the court holding the deed and defeasance to be a
mortgage, and that
Page 57 U. S. 567
the complainant had a right to redeem, remanding the cause to
the court below, with directions to enter a decree for the
complainant, and for further proceedings in conformity to the
opinion of the court. The case and opinion of this Court will be
found in
53 U. S. 12 How.
139.
The main question litigated in the cause, both in the court
below and in this, was whether or not the transaction, the decree
and defeasance, was a conditional sale to become absolute on the
failure to refund the purchase money within the time, or a security
for the loan of money. The case was severely contested in the court
below, some seventy witnesses having been examined, as appears from
the original record, and was very fully argued by counsel, and
considered by this Court, as may be seen by a reference to the
report of the case.
On the coming down of the mandate from this Court to the court
below, and the entry of a decree in conformity thereto, the
defendants filed a bill of review, which having been entertained by
the court, the cause went to a hearing on the pleadings and proofs,
and after argument the court dismissed the bill. The case is now
before us on an appeal from that decree. Between forty and fifty
witnesses have been examined upon the issues in this bill of
review; but we do not deem it material to go into the evidence,
except as it respects one or two particulars, which are mainly
relied on as ground for interfering with the former decree. The
learned counsel for the appellant, in a very able argument laid
before us, frankly and properly admits that, so far as it regards
the newly discovered evidence produced, the case rests mainly upon
the alleged bribery of one of the material witnesses for the
complainant in the original suit, Dr. Wood; and upon the evidence
of Hancock, who had not before been a witness. It is claimed that
this evidence is of such a nature and character, when taken in
connection with the original case, as to be controlling and
decisive of the original suit in favor of the defendants; and that
it is competent and admissible as newly discovered facts bearing
upon the main issue in that case, within the established doctrine
concerning proceedings in bills of review.
It is important, therefore, to ascertain with some exactness the
character and effect of this evidence when taken alone; and also
when viewed in connection with the evidence in the former case.
The bill of review charges, upon information and belief, that
Stewart who was one of the solicitors for the complainant in the
original bill obtained by means of bribery the testimony of Dr.
Wood, a material witness in the cause, and upon the faith of whose
evidence this Court was induced to render its decision
Page 57 U. S. 568
on the appeal; that said Stewart gave to the witness his note
for the sum of two hundred and eighty dollars, and that this fact
first came to the knowledge of the complainants since the
decree.
The answer sets forth, that this note was given by Stewart under
the following circumstances: the defendant, on his return to the
State of Kentucky, in the fall of 1827, ascertained that his
overseer, Wing, who was his agent in charge of the farm or
plantation in question, had greatly involved him in debt, and among
the list of creditors furnished by said overseer were Doctors Smith
and Wood. That afterwards, when he brought his suit for the
redemption of the mortgage, he left with the said Stewart a list of
the names by whom he believed he could prove the facts necessary to
sustain his bill; and among others were the names of Doctors Wood
and Smith. That he was subsequently informed by Stewart that each
of these two witnesses claimed a debt against him; and that Wood
had exhibited an account certified by said Wing, his overseer, for
medical services and borrowed money; and knowing that any account
signed by Wing was correct, the defendant authorized his solicitor
to execute a note for the same as his agent; and to do the same
thing in respect to Dr. Smith, after ascertaining what was really
and truly due to him.
That he was afterwards informed by said Stewart, he had executed
a note to Doctor Wood to the amount of two hundred and eighty
dollars, which included his account together with the interest.
That said Stewart also informed him he would have given a similar
obligation to Doctor Smith; but on reference to a record of a suit
of said Smith against the defendant in Louisville chancery court,
it appeared doubtful if any further sum was due to him. Thus the
facts stand upon the pleadings.
The proofs in the case, as far as they go, sustain the answer.
They consist altogether of admissions drawn from Wood by persons in
the service of Southard, the complainant, employed with the express
view of extorting them by the temptation of reward, and by the use
of the most unscrupulous and unjustifiable means. A deliberate and
corrupt conspiracy was formed, at the instance of Southard, for the
purpose of obtaining from Wood an admission that this note was
given as an inducement to a consideration for his testimony in the
original suit; but in the several conversations detailed, and
admissions thus insidiously procured, Wood persisted in the
assertion that the note was given as a consideration principally
for medical services rendered to the slaves of Russell on the
plantation in question. If any doubt could exist as to the truth of
the circumstances under which this note was given, as declared by
Wood, his
Page 57 U. S. 569
consistency in the numerous conversations into which he was
decoyed, unconsciously, by the conspirators, should remove it. If
not founded in fact, the consistency is strange and unaccountable,
considering the character of the persons employed to entrap him,
and the unscrupulous and unprincipled appliances used to accomplish
a different result, namely, the obtaining an admission that the
note was given as the wages of his former testimony. He was
surrounded by professed friends for this purpose, and intoxicating
liquors freely used, the more readily to entrap him. An attempt has
been made to invalidate this explanation by the testimony of Doctor
Smith, who states, that he was the general physician of the
plantation, and that, in his opinion, services to the amount
claimed by Wood could not have been rendered at the time without
his knowledge; but this negative testimony, whatever weight may
properly be given to it, is not sufficient to overcome the answer,
and, corroborating circumstances to which we have referred. It is
matter of opinion and conjecture, and that too after the lapse of
some twenty-five years. Wing, the overseer, who might have cleared
up any doubt upon the question, is dead.
One line of proof and of argument, on the part of the
complainant in the original suit, to show that the transaction was
a mortgage and not a conditional sale, was the great inadequacy of
price. A good deal of evidence was furnished on both sides upon
this point. The item of newly discovered evidence, besides that
already noticed, is the testimony of Hancock, who states that
Russell in a conversation with him in the forepart of the year
1827, as near as he could recollect, offered to sell to him the
plantation for the sum of $5,000. This is claimed to be material,
from its bearing upon the question of adequacy of price, Southard
having paid nearly this amount.
Without expressing any opinion as to the influence this fact, if
produced on the original hearing, might have had, it is sufficient
to say, that it does not come within any rule of chancery
proceedings as laying a foundation for, much less as evidence in
support of, a bill of review.
The rule, as laid down by Chancellor Kent 3 J.Ch. 124, is that
newly discovered evidence, which goes to impeach the character of
witnesses examined in the original suit, or the discovery of
cumulative witnesses to a litigated fact, is not sufficient. It
must be different, and of a very decided and controlling character.
3 J.J.Marsh. 492; 6 Madd. 127; Story's Eq.Pl. § 413.
The soundness of this rule is too apparent to require argument,
for if otherwise, there would scarcely be an end to litigation in
chancery cases, and a temptation would be held out to
Page 57 U. S. 570
tamper with witnesses for the purpose of supplying defects of
proof in the original cause.
A distinction has been taken where the newly discovered evidence
is in writing, or matter of record. In such case, it is said, a
review may be granted, notwithstanding the fact to which the
evidence relates may have been in issue before; but otherwise, if
the evidence rests in parol proof. 1 Dev. & Batt. 108, 110.
Applying these rules to the case before us, it is quite apparent
that the decree below dismissing the bill was right and should be
upheld. The utmost effect that can be claimed for the newly
discovered evidence is: 1. the impeachment of the testimony of
Doctor Wood in the original suit, and 2. a cumulative witness upon
a collateral question in that suit, which was the inadequacy of the
price paid; a fact, it is true, bearing upon the main issue in the
former controversy, but somewhat remotely.
As it respects the first -- the impeachment of Wood -- the means
disclosed in the record resorted to by the complainant, Southard,
strongly exemplify the soundness of the rule that excludes this
sort of evidence as a foundation for a bill of review, and the
danger of relaxing it by any nice or refined exceptions. And as to
the second -- the evidence of Hancock -- it is excluded on the
ground, not only that it is merely cumulative evidence, but relates
to a collateral fact in the issue, not of itself, if admitted, by
any means decisive or controlling. If newly discovered evidence of
this character could lay a foundation for a bill of review, it is
manifest that one might be obtained in most of the important and
severely litigated cases in courts of chancery.
There is another question involved in this case, not noticed on
the argument but which we deem it proper not to overlook.
As already stated, the decree sought to be set aside by this
bill of review in the court below was entered in pursuance of the
mandate of this Court on an appeal in the original suit. It is
therefore the decree of this Court, and not that primarily entered
by the court below, that is sought to be interfered with.
The better opinion is that a bill of review will not lie at all
for errors of law alleged on the face of the decree after the
judgment of the appellate court. These may be corrected by a direct
application to that court, which would amend, as matter of course,
any error of the kind that might have occurred in entering the
decree.
Nor will a bill of review lie in the case of newly discovered
evidence after the publication, or decree below, where a decision
has taken place on an appeal, unless the right is reserved in
the
Page 57 U. S. 571
decree of the appellate court, or permission be given on an
application to that court directly for the purpose. This appears to
be the practice of the Court of Chancery and House of Lords in
England, and we think it founded in principles essential to the
proper administration of the law, and to a reasonable termination
of litigation between parties in chancery suits. 1 Vern. 416; 2
Paige 45; 1 McCord's Ch. 22, 29, 30; 3 J.J.Marsh. 492; 1 Hen. &
Munf. 13; Mitford's Pl. 88; Cooper's Pl. 92; Story's Eq.Pl. § 408.
Neither of these prerequisites to the filing of the bill before us
have been observed.
We think the decree of the court below, dismissing the bill of
review, was right, and ought to be
Affirmed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Kentucky, and was argued by counsel. On consideration whereof it is
now here ordered, adjudged, and decreed by this Court, that the
decree of the said circuit court in this cause be, and the same is
hereby affirmed, with costs.
