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4 Viner 410.

2. Where a decree is neither figned nor enrolled, a bill of review cannot be brought, but a fupplemental bill in the nature of a bill of review. Lervellin v. Mackworth, 2 Atk. 40. June 1740.

3. On a petition for a bill of review, it must appear that the new matter, upon which fuch bill is brought, has come materially and substantially to the knowledge of the party or his agents fince the time of the decree in the former caufe, or fince such time as he could have used it to his advantage in the former cause and a probable ground of relevancy must be ftated. Lord Portf mouth v. Lord Effingham, 1 Vef. 431. May 1750. 2 Vef. 577. Wortley v. Birkhead.

(Z. 3) Bill of Review, on what Terms.

1. UPON every bill of review to reverse a decree the plaintiff muft depofit 50l. with the register to anfwer the costs of the fuit. Anon. 2 P. W. 283. Trin. 1725. 2 Atk. 139.

2. Where a decree has not been figned and enrolled it is proper to bring a bill in the nature of a bill of review, and it is a fruitlefs thing to make a man fign and enrol a decree in order to entitle him to bring a bill of review, and the rule to review and reverfe a former decree is the difcovery of new matter, fince the making the decree which was in being at the time, but not known to the party till afterwards. 2 Atk. 177. Standish v. Radley, April 1741.

3. If a bill of review be brought to reverse a decree upon new matter, in fuch case, the plaintiff in the bill of review must have the leave of the court for filing fuch bill; but there is no need of leave if the bill of review be brought to reverfe a decree for error apparent on the face thereof. Gould v. Tancred, 2 Atk. 533March 1742.

4. It is fufficient to entitle a party to bring a bill of review, if the new proof did not come to his knowledge till after the publication, or when by the rules of the court he could not make use of it; but if it came to the knowledge of the party's attorney, folicitor, or agent, before the cause was heard, it is confidered as notice to themselves, and is the fame thing as coming to the party's knowledge. Norris v. Le Nave, 3 Atk. 26.

5. There are two points which must be attended to on a petition for a bill of review; first, whether it is fhewn that this new matter upon which fuch a bill is brought, has come to the knowledge of the party or his agents fince the decree, or fince such time as he could have made use of it; and, fecondly, whether there is probable cause made out that fuch new matter may be relevant. Lord Portsmouth v. Lord Effingham, 1 Vef. 430.

6. A decree having been made at the Rolls, but not figned and enrolled, a bill partly supplemental in the nature of a bill of review was brought, for matters exifting before; but there was no pe

tition to rehear or appeal, which was thought neceffary, and the cause stood over for judgment, with liberty in the mean time to prepare fuch a petition. Moore v. Moore, a Vef. 596. June 1755

(Z. 4) Bill of Review, at what Time.

1. IN this cause it appeared, that the perfons under whom the petitioners claimed were fully acquainted with the matter now complained of thirty-five years ago, fuch an effluxion of time and the certain knowledge of the plaintiff's ancestors of the whole tranfaction, had great weight with the court, and the petition for leave to file the bill of review was difmiffed. Norris v. Le Nave, 3 Atk. 26. Feb. 1743.

2 A bill of review cannot be brought for error apparent on the face of the decree after twenty years, and the time begins to run from the decree and not from the enrolment. Smith v. Clay, Amb. 645. May 1767. 3 Bro. C. C. 639.

3. A bill of review cannot in general be brought after twenty years, for equitable rights are fubject to the fame bar as legal rights. But this bar cannot be objected to perfons having contingent interefts, and then not exifting, or to an infant, or to any perfon under the difabilities specified in the ftatute of limitations. Lytton v. Lytton, 4 Bro. C. C. 441. Nov. 1793.

4Viner 412.

(Z. 5) Pleas to Bills of Review, and what may be 4 Viner 413. affigned for Error.

1. WHEN a fupplemental bill is brought for any new matter discovered fince the hearing of the cause, before the former decree was figned and enrolled, if the defendant to fuch bill is able to fhew that there is no new matter discovered fince, he muft take advantage by plea, or demurrer, and it is too late to infift upon it at the hearing. Lewellin v. Mackworth, 2 Atk. 40. June 1740.

2. If a decree is impeached upon the ground of fraud, the proper defence feems to be a plea of the decree, accompanied by a denial of the fraud charged. 1 Bro. P. C. 414.

I.

(A. a) Cofts. In what Cafes in general, and how. 4Viner 414

"WH HEN a defendant is profecuted both at law and in equity for the fame thing, and there is an order for the plaintiff to make his election, and the plaintiff elects to proceed at law, or neglects to make his election within the time directed by the order, his bill is to be difmiffed with coft's; and if one makes a fpecial election to proceed at law as to part, and in equity as to the other part, with regard to what he elects to proceed at law,

his bill ought to be difmiffed with cofts. Anon. 3 P. W. 9o. n. Mich. 1723.

2. Where a bill is brought to fecure and have the benefit of a contingent intereft devifed over, the costs fhall be paid out of the affets of the teftator, who by his will has created the difficulty. Studholm v. Hodgson, 3 P. W. 300. Trin. 1734. Jolliffe v. Eaft, 3 Bro. C. C. 25.

3. Where a trustee misbehaves himself, he shall pay costs out of his own pocket, and not out of the trust-eftate. Lloyd v. Spillet, 3 P. W. 344. Mich. 1734.

4. An heir at law is made a defendant, and infifts on his title, he fhall have his costs though it goes against him; but if an heir at law be plaintiff, and mifcarries in his fuit, he fhall not have his costs; but if the fuit appears groundlefs, he fhall pay cofts. Luxton v. Stephens, 3 P. W. 373. Trin. 1735.

5. Bill may be amended after anfwer on payment of 20 s. costs. Deggs v. Colebrooke, 1 Atk. 396. Feb. 1738.

6. The defendant denied all the equity of the bill, and the plaintiff brought the caufe to a hearing on bill and answer only, in order to get off with 40 s. cofts. The court, on dismishing the bill upon the merits, gave cofts to be taxed. Johnson v. Brown, 3 Atk. 1.

7. The rule of law is, that an executor fued for a debt of a teftator is to pay costs de bonis propriis; but in equity it is difcretionary, whether the executor is to pay cofts or not; and this court, though the specialty creditor fweeps away the whole perfonal eftate, will not let the executor reimburse himself out of the real estate of the debtor, to the prejudice of the heir at law. Uvedale v. Uvedale, 3 Atk. 117. July 1744.

8. By a decree in the caufe, cofts had been decreed to all parties out of the real estate; one of the parties entitled to receive cofts dies before they had been taxed. Lord Hardwicke Ch. faid, Where cofts are decreed perfonally, they die with the perfon; otherwise where they have been decreed out of a real estate. Blower v. Morrets, 3 Atk. 772. April 1754.

9. Bill by difinherited heir at law to have infpection of deeds and writings difmiffed without costs. Leman v. Alie, Amb. 163. Jan. 1753.

10. Tenant under an elegit had received rents and profits beyond the debt. Decreed to pay the overplus, together with plaintiff's cofts. Defendant appealed for cofts only, and the decree was reverfed as to the cofts. Owen v. Griffith, Amb. 520. June 1749. 1 Vef. 250.

11. There must be an actual tender to excuse costs; and in the cafe of mortgages, in which, though very reasonable proposals may be made, yet if no proof of an actual tender, the court on a bill to foreclofe never refufes cofts. Gammon v. Stone, Vef. 339. Dec. 1749.

12. Costs ordered to be refunded on reverfing an order for allowing a demurrer. Oates v. Chapman, ■ Vef. 542. Aug. 1750, 2 Vef. 100.

13. Whether

13. Whether cofts be given to plaintiff or defendant, by death of the party before they are taxed, they fall to the ground, because it is a personal demand in nature of a tort, and dies with the perfon. White v. Hayward, 2 Vef. 461. July 1752.

14. An ambassador's fervant bringing a bill has been obliged to give fecurity for cofts, being a privileged perfon ;' and where a party lives abroad he muft give fecurity for 401. which though low has not been increased but upon terms. Gage v. Lady Staf ford, 2 Vef. 556. July 1754.

15. On the original bill against the prefent defendant's father, an account was directed and costs to the hearing given to him as well as to the plaintiff, but his crofs bill was difmiffed with cofts; he died; and an exception was now taken by the plaintiffs, because the master had not allowed them the costs of that difmiffion. Lord Hardwicke faid, In this case, heard on bill and cross bill, the court had made an entire decree, difmiffed the crofs bill with cofts, and gave the defendant cofts to the hearing, and if any furplus remained, ordered that that should be paid to the plaintiff in the original caufe; fo that the cofts given at the hearing were to come out of that fund, and where cofts are taxed or directed to be paid out of a particular fund, they do not die with the perfon. Kemp v. Mackrell, 2 Vef. 580. Aug. 1744.

16. Notwithstanding the common courfe of the court is to give only 40 s. cofts, upon difmiffion of a fuit heard upon bill and anfwer, yet if the fuit be vexatious, full costs may be given. Manfel v. Bowles, 1 Bro. C. C. 403.

17. Motion, after anfwer put in, that the plaintiff living in Ireland might give fecurity for cofts, refufed, being confidered after anfwer, as a fecond dilatory. Craig v. Bolton, 2 Bro. C. C. 6cg. 18. An executor who ought to have been a co-plaintiff, was made a defendant, and his cofts were ordered him. Blount v. Burrow, 3 Bro. C. C. 90.

19. Where an heir at law files a long bill to harass the devifee, and his bill is difmiffed, he fhall pay cofts. Seal v. Brownton, 3 Bro. C. C. 214.

20. A fum certain may be given for cofts, to avoid the expence of taxation, upon a fum which must be trifling. Wilding v. Wilding, 4 Bro. C. C. 100.

21. Where an heir at law is brought by order before the court, though there is no refulting truft in his favour, he shall have his costs. Attorney General v. Haberdashers Company, 4 Bro. C. C. 178.

22. Though trustee and executors raised a point by their anfwer, and failed in it, yet as they were brought into court, and it was merely a fubmiffion of the point to the opinion of the court, they must have their cofts. Afbley v. Masters, 1 Vef. jun. 201.

23. There cannot be a cafe in which a plaintiff can difmifs his bill without cofts, but by confeat. Dixon v. Parks, 1 Vef. jun. 402.

24. It is too general a rule that the plaintiff fhould pay the cofts of the difcovery he feeks by his bill; for if the plaintiff is en

titled to the discovery, and demands it before he files his bill, if defendant refuses, and compels plaintiff to come into equity for discovery, Mr. Juftice Buller (fitting for the Lord Chancellor) declared he would not give defendant cofts. Weymouth v. Boyer, 1 Vef. jun. 416.

25. Where a cause is between relations, cofts are given out of the estate, as between attorney and client. Moggridge v. Thackwell, Ves. jun. 464.

4Viner 419. (B. a) How the Suit fhall be profecuted, or rather in what Cafes inferior Courts of Equity, exceeding their Authority, shall be prohibited.

Vide Certiorari (M).

Vide Title Chancery (M). In what Cafes Suits may be there in regard to other Courts.

4Viner 419. (C. a) Examination of Witnesses in perpetuam rei

I.

memoriam.

1. MOTION to take the examination de bene effe of a furviving

witness to a will, and an affidavit was read that all the parties lived in Virginia, that the witness was 60 years old, and was afflicted with the gravel. The motion was granted on account of the parties living in Virginia, though it was faid, that the rule was that the witnefs must be 70 years old. Fitzhugh v. Lee, Amb. 65.

2. The only witness to a material fact ordered to be examined de bene effe, though no age was fworn to. Hankin v. Middleditch, 2 Bro. C. C. 641.

3. In a bill to perpetuate teftimony of witneffes of a right of common and way, the plaintiffs claimed in right of their eftates or otherwife, which was too loose, for the right, by which they claimed, ought to have been fhewn; and a demurrer to the bill was allowed. Creffet v. Mytton, 3 Bro. C. C. 481.

4Viner 421. (D. a) Bills in Chancery. For what they may be brought, and in what Cafes they lie in general.

"A

Bill lies to compel the delivery of an altar-piece, or other curiofity in fpecie, and undefaced. Duke of Somerset v. Cookfon, 3 P. Wms. 390.

2. Bill for a legacy of 500l. by a husband in right of his wife, given her under the will of her father, notwithstanding he had in his lifetime received 500l. as her portion. It appeared that the 500l. portion was intended in fatisfaction of what the father intended his daughter under the will, and alfo that there had been

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