The Opinion of the Court was delivered by
Caton, J.
In the first place, it is necessary to ascertain the nature and character of this bill, in order to understand by what principles we shall be governed in the determination of the several questions which have been raised by the defendant in support of his demurrer. It is insisted by him that it is purely a bill of review, and must be governed by the rules which are applicable to such bills, while it is insisted by the complainants that although they have in some parts of the proceedings called it a bill of review, yet it is not so, strictly, but partakes partly of the character of a bill of review, and partly of an original bill. Bills of review are in the nature of writs of error, filed in the same Court where the decree in the original cause was entered, calling upon the Court to review, and reverse the former decree. They are of two characters, first,.for error of law, and secondly, upon newly discovered evidence.
Firstly, a bill of review may be brought for error of law, which is apparent upon the face of the decree itself. In such a case no question is raised as to the propriety of the determination of the matters of fact, or the evidence upon which the decree is founded, but it is only upon matters of law as arising upon the facts, which are to be taken as absolutely true, as stated in the decree, that any question can be raised. By decree here, must be understood, not only the final judgment of the Court, but the pleadings also, the substance of which, according to the English practice, is recited in the decree. So that in passing upon the errors assigned, in the bill of review, the Court will look through the bill, answer, the facts as found, and determined in the original cause, and into the adjudication made thereon.
Secondly , a party may file a bill of review for newly discovered evidence. 'In such a case the bill must set forth the newly discovered matter, and that it has arisen since the final decree, or has since come to the knowledge of the party, and that he was guilty of no neglect, in not discovering and producing it before. The evidence must not be cumulative, and must be of an important and decisive character, if not conclusive, and most usually consists of documentary evidence. A party may bring a bill of review for error apparent as a matter of right without the leave of the Court; but'allowing a bill of review for newly discovered evidence, rests in the sound discretion of the Court. " It is, therefore, necessary to apply to the Court for leave to file this bill, which may be refused, although the new facts might change the decree, if the Court is of opinion, looking at the whole case, that innocent parties might be injured, or for any other satisfactory reason. Before filing a bill of review, it is necessary that the party should pay the costs of the first cause, and perform the decree, unless the party by performing the decree, would extinguish some right; such as executing a release or the like, or the party is unable, from some cause? to perform the decree, when upon special application, the Court may allow him to file a bill of review without complying with the decree.-
There is another soft of bills for opening and reversing a decree in the same Court, very nearly allied to a bill of review, the object of which is to impeach the former decree for fraud. This is an original bill in the nature of a bill of review, and is. a matter of right, and may be filed at any time without the leave of the Court. This bill may be brought for fraud in fact, or fraud in law. ( Cooper’s Eq. Pl. 96). There are other bills similar in their nature and objects; but it is unnecessary to mention them here. It is not unfrequently the case, that one bill partakes of the character of several of these and other bills. Such was the case of Perry v. Phillips, 17 Ves. 176, where Lord Eldon says: “There is no objection to this bill, as being, on the face of it, a bill of review and supplement, as in some cases, the bill must of necessity be both a bill of review .and a bill of revivor, and in some, a bill of supplement also, in addition to these two descriptions.” So also of necessity may a bill be filed seeking the reviewal and reversal of a former decree, partaking both of the character of a bill of review for errors apparent, and of an original bill in the nature of a bill of review seeking to reverse a former decree for fraud, both of which may be filed without the leave of the Court; as for instance, suppose a bill is filed against several defendants in which a decree is entered, which, as against one of the defendants, there is manifest error on its face, but as against the other defendants, there is no apparent error, but was in truth obtained by fraud. Such, we apprehend, is the true character of this bill, and it remains to be seen whether, as such, it can be sustained.
This original bill on which the decree which is sought to be reversed was entered, avers, that in 1835, the parties entered into an agreement of copartnership in the lead business at Galena, by the terms of which, Griggs & Weld were to furnish Gear with all the money which he should want, and Gear was to superintend the business at Galena, and ship the lead to Boston, to be sold by Griggs & Weld. From the terms of the agreement, so far as we can learn from the bill, Harback was to do nothing, either by advancing capital, or bestowing his personal attention upon the business. He undertook to do nothing, unless what the law wquld imply from his being named as one of the partners, that he should share in the profits and loss of the business. The bill avers that Griggs & Weld refused to furnish capital according to the agreement, whereby Gear had suffered damage to more than one hundred thousand dollars. It no where avers that Harback had done any thing improper, or refused to do any thing that he had agreed to do. It states that Griggs & Weld had sued Gear for over $13,000 for goods furnished to him by them on account of said copartnership, which suit was sought to be enjoined by that bill. In 1839, without any authority from the defendants in the chancery suit, the attorneys of Griggs ¿>’ Weld in the suit at Taw which was enjoined, entered a motion in the chancery cause to dissolve the injunction, which motion was overruled in 1841, and in 1842 a decretal order was entered directing a special Master to take proof of the allegations of the bill, and to ascertain and report the amount of damages to which the complainant was entitled, if any, by reason of the premises, against the defendants, or either of them. In 1844, the special Master reported, that by reason of the failure of the defendants to fulfil their part of the agreement, Gear had suffered a loss of $50,000, from which the Master had deducted $13,791-98, the amount of goods furnished by Griggs & Weld to Gear, leaving a balance due him from the defendants of $36,208-02, which report was approved by the Court, and the balance thus found decreed to be paid to Gear by all the defendants jointly. '
The bill in this cause states the substance of the proceedings in the original cause, and makes an entire copy thereof, an exhibit, and assigns a variety of errors in. the former decree, and prays that the same may be reviewed and reversed. To this bill a demurrer was filed, which was sustained by the Court, and the bill dismissed, which decision we are now called upon to reverse.
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The Opinion of the Court was delivered by
Caton, J.
In the first place, it is necessary to ascertain the nature and character of this bill, in order to understand by what principles we shall be governed in the determination of the several questions which have been raised by the defendant in support of his demurrer. It is insisted by him that it is purely a bill of review, and must be governed by the rules which are applicable to such bills, while it is insisted by the complainants that although they have in some parts of the proceedings called it a bill of review, yet it is not so, strictly, but partakes partly of the character of a bill of review, and partly of an original bill. Bills of review are in the nature of writs of error, filed in the same Court where the decree in the original cause was entered, calling upon the Court to review, and reverse the former decree. They are of two characters, first,.for error of law, and secondly, upon newly discovered evidence.
Firstly, a bill of review may be brought for error of law, which is apparent upon the face of the decree itself. In such a case no question is raised as to the propriety of the determination of the matters of fact, or the evidence upon which the decree is founded, but it is only upon matters of law as arising upon the facts, which are to be taken as absolutely true, as stated in the decree, that any question can be raised. By decree here, must be understood, not only the final judgment of the Court, but the pleadings also, the substance of which, according to the English practice, is recited in the decree. So that in passing upon the errors assigned, in the bill of review, the Court will look through the bill, answer, the facts as found, and determined in the original cause, and into the adjudication made thereon.
Secondly , a party may file a bill of review for newly discovered evidence. 'In such a case the bill must set forth the newly discovered matter, and that it has arisen since the final decree, or has since come to the knowledge of the party, and that he was guilty of no neglect, in not discovering and producing it before. The evidence must not be cumulative, and must be of an important and decisive character, if not conclusive, and most usually consists of documentary evidence. A party may bring a bill of review for error apparent as a matter of right without the leave of the Court; but'allowing a bill of review for newly discovered evidence, rests in the sound discretion of the Court. " It is, therefore, necessary to apply to the Court for leave to file this bill, which may be refused, although the new facts might change the decree, if the Court is of opinion, looking at the whole case, that innocent parties might be injured, or for any other satisfactory reason. Before filing a bill of review, it is necessary that the party should pay the costs of the first cause, and perform the decree, unless the party by performing the decree, would extinguish some right; such as executing a release or the like, or the party is unable, from some cause? to perform the decree, when upon special application, the Court may allow him to file a bill of review without complying with the decree.-
There is another soft of bills for opening and reversing a decree in the same Court, very nearly allied to a bill of review, the object of which is to impeach the former decree for fraud. This is an original bill in the nature of a bill of review, and is. a matter of right, and may be filed at any time without the leave of the Court. This bill may be brought for fraud in fact, or fraud in law. ( Cooper’s Eq. Pl. 96). There are other bills similar in their nature and objects; but it is unnecessary to mention them here. It is not unfrequently the case, that one bill partakes of the character of several of these and other bills. Such was the case of Perry v. Phillips, 17 Ves. 176, where Lord Eldon says: “There is no objection to this bill, as being, on the face of it, a bill of review and supplement, as in some cases, the bill must of necessity be both a bill of review .and a bill of revivor, and in some, a bill of supplement also, in addition to these two descriptions.” So also of necessity may a bill be filed seeking the reviewal and reversal of a former decree, partaking both of the character of a bill of review for errors apparent, and of an original bill in the nature of a bill of review seeking to reverse a former decree for fraud, both of which may be filed without the leave of the Court; as for instance, suppose a bill is filed against several defendants in which a decree is entered, which, as against one of the defendants, there is manifest error on its face, but as against the other defendants, there is no apparent error, but was in truth obtained by fraud. Such, we apprehend, is the true character of this bill, and it remains to be seen whether, as such, it can be sustained.
This original bill on which the decree which is sought to be reversed was entered, avers, that in 1835, the parties entered into an agreement of copartnership in the lead business at Galena, by the terms of which, Griggs & Weld were to furnish Gear with all the money which he should want, and Gear was to superintend the business at Galena, and ship the lead to Boston, to be sold by Griggs & Weld. From the terms of the agreement, so far as we can learn from the bill, Harback was to do nothing, either by advancing capital, or bestowing his personal attention upon the business. He undertook to do nothing, unless what the law wquld imply from his being named as one of the partners, that he should share in the profits and loss of the business. The bill avers that Griggs & Weld refused to furnish capital according to the agreement, whereby Gear had suffered damage to more than one hundred thousand dollars. It no where avers that Harback had done any thing improper, or refused to do any thing that he had agreed to do. It states that Griggs & Weld had sued Gear for over $13,000 for goods furnished to him by them on account of said copartnership, which suit was sought to be enjoined by that bill. In 1839, without any authority from the defendants in the chancery suit, the attorneys of Griggs ¿>’ Weld in the suit at Taw which was enjoined, entered a motion in the chancery cause to dissolve the injunction, which motion was overruled in 1841, and in 1842 a decretal order was entered directing a special Master to take proof of the allegations of the bill, and to ascertain and report the amount of damages to which the complainant was entitled, if any, by reason of the premises, against the defendants, or either of them. In 1844, the special Master reported, that by reason of the failure of the defendants to fulfil their part of the agreement, Gear had suffered a loss of $50,000, from which the Master had deducted $13,791-98, the amount of goods furnished by Griggs & Weld to Gear, leaving a balance due him from the defendants of $36,208-02, which report was approved by the Court, and the balance thus found decreed to be paid to Gear by all the defendants jointly. '
The bill in this cause states the substance of the proceedings in the original cause, and makes an entire copy thereof, an exhibit, and assigns a variety of errors in. the former decree, and prays that the same may be reviewed and reversed. To this bill a demurrer was filed, which was sustained by the Court, and the bill dismissed, which decision we are now called upon to reverse.
It has been before stated, as a bill of review, we cannot question the truth of the facts upon which the Court acted in making up the decree, nor of the mode in which the Court below came to the determination of the existence of those facts; but we are only to examine and see if the questions of law arising on those facts have been properly determined. In doing this, however, we must look at the whole record, and if we find that the Court below found any facts to exist and acted upon them, which are not founded upon, or are inconsistent with the statements in the bill, those facts must be rejected, because if the averments in the bill do not warrant the judgment of the Court, there is an error on the face of the proceedings, for no proof could legitimately be given to entitle the party to more relief against any of the defendants than the averments in the- bill show that lie ought to have. The proofs must necessarily be confined within the statements of the bill. Taking, then, all the statements of the bill to have been proved, and still they could not possibly have sustained the decree against Harback. By the complainant’s own showing, he never violated the agreement of co-partnership in any way whatever. He was to furnish no money and was to do no act; nor is the- least complaint made against him; and yet because Griggs & Weld failed to furnish Gear with the necessary-funds as they had agreed, Harback is decreed jointly with Griggs &' Weld to pay to Gear 136,208-02 damages. If, in truth, the business of the firm was broken up, and great damages sustained by reason of this default of Griggs & Weld, then was Harback entitled to a share of those, damages, instead of being compelled to contribute to their payunent. There is no intimation that Harback became obligated to Gear, any more than Gear did to him, for the faithful performance, by Griggs & Weld of their part of the agreement. In this respect, then, there is manifest error in the original decree and sufficient to sustain this bill as to Harback, at least as a bill of review.
This bill shows that no process was ever served upon any of the defendants in the original bill filed by Gear; nor wapublication made of the pendency of the suit under the statute; nor were they, in any other manner, brought into Court, nor did they ever authorize any solicitor to enter their appearance in that cause; nor was their appearance ever entered in any way in that cause, except that the attorneys of Griggs & Weld, in their suit at law, which was enjoined by that bill, moved to dissolve that injunction, without ever paying any farther attention to the suit. We are not prepared to say, even if they had been specially retained to make that motion, that that was such an appearance of the defendants, as authorized the Court to take jurisdiction and proceed with the cause, without service or notice. Let that be as it may, however, it is certain that the attorneys who made that motion, were not retained by the defendants to appear in that suit at all; but so far from it, the defendants never knew of its existence till after the final decree was entered. It further appears, that those attorneys are irresponsible. Can it be tolerated for a moment, that parties are to be bound by a decree to pay more than $36,000 which is entered up behind their backs, and without even an implied knowledge of the existence of the suit, and without their having any adequate remedy over against any one? Can it be said, that the arm of equity is too short to reach such a flagrant case of injustice as this? Neither the law nor good conscience can tolerate such a conclusion. We cannot consent to attach such a sanctity to the character and conduct of a solicitor, that he may bind strangers without their privity or consent in proceedings which may be utterly ruinous to them, and without their being able to respond for the damages which they may occasion, no matter how honest may be their motives. If the fortunes of all our citizens are held by so frail a tenure as this,—if they may be utterly ruined without redress, either by the carelessness, the ignorance or ¡the dishonesty of every one who may get a license to practice law in a country where there are so many facilities for obtaining a license as in this, it is quite time that every one should know it. Here, we have not been in the practice of requiring a written authority to allow a solicitor to enter the appearance of defendants in chancery, and we are bound to afford the party relief where his appearance has been entered without authority, and where the solicitor is unable to indemnify the party for the damages which he must sustain by the unauthorised act, and that too whether the solicitor act under a misapprehension of his duty, a misunderstanding of his authority, or from a fraudulent intent. To the defendant it is the same thing. To him it is no difference, whether he is ruined by the mistaken notion of one whom he has never authorized to appear for him, or by the appearance of one who desires to injure- him, and does it for that purpose alone. In the former e'as'e, there is not that moral turpitude, which is manifest in the latter, yet the mischief in the particular case is ’precisely the same. In the former Case, it is a fraud in law, while in the latter it is fraud in fact; and in either case, especially‘if the solicitors be irresponsible as in this case, it-is sufficient ground to open the decree and let the parties into a defence; and we should be inclined to adopt the same rule, even if the solicitors were not insolvent, an'd turn the complainant in the original suit-over to the solicitor,' if he had sustained damage by his unauthorized interference. In this case, there is no pretence of any improper motive on the part of the attorneys who entered the motion to dissolve the injunction; nor will we now" say that they transcended their duty as attorneys in the suit at law, in making the effort to get it relieved from the injunction,- that they might proceed with its prosecution; but if they did not, then they acted as attorneys in the suit at law, and not as solicitors in the suit in chancery. They were employed by Griggs & Weld alone to collect a debt from Gear of over $13,000, and not to subject Griggs, Weld and Harback to a decree of over $36,000 against them. If the entry of that motion was not an appearance for the defendants, then the decree was manifestly wrong for want of jurisdiction of the persons of the defendants. If it was an appearance, then it was without authority, and, as to them,, was a fraud in law, and entitles them to relief.
We have already shown that this bill is of a character which does not require the consent of the Court to bring the suit before the bill is filed. It has been already- stated that before filing a bill of review, the party who seeks to reverse the former decree must have performed it. As, if it be for the delivery of the possession of land, he must have done so; or for the payment of money, he UiuSthave paid it. If, however, by complying with the decree he would extinguish a right,? as the execution of an acquittance, or the like; or if the party shows himself absolutely unable to comply with the decree, as, for instance, where he is required to pay a sum of money and he is insolvent, he may show the facts to the Court, and get relieved from the performance before he files the bill. In this case it does not appear that the parties have performed the decree, nor was previous leave given to file this bill without performance, although the complainants aver in this bill their inability to perform; yet, if the defendant wished to raise that objection to the right of the complainants to file this bill, he should have moved the Court below, upon his first appearance, to have stricken the bill from the files, or to have dismissed the suit, and not went on and treated it as if it were regularly filed. By demurring to it he admits that it is properly in Court, and only objects that the statements in the bill show no ground for relief. The performance of the decree is not necessary to the jurisdiction of the Court, but was merely a personal right, which the defendant might have insisted upon, and which he should have urged at a proper time. He has chosen, however, to rely upon the insufficiency of the case as presented by the bill, and having consented to enter upon the merits of the controversy, he must abide the result.
A question was made, upon the argument, of the propriety of the proceedings before the Master; and such is one of the errors assigned in this bill, but the propriety of his practice is not the subject of review in this mode. Upon the report of the Master, the Court below found the existence of certain facts upon which it pronounced its decree, and we cannot now inquire whether it decided properly in the ascertainment of these facts; but we can only see if it pronounced the law properly upon the facts which were presented in the complainants’ bill, and thus found.
The decree of the Court below, sustaining the demurrer and dismissing the bill, must be reversed, and the cause remanded for further proceedings, each party to pay one half of the costs of the appeal.
Decree reversed.