Mr. Justice Morris
delivered the opinion of the Court:
The appellants have assigned threefold error: 1st. They say that it was error in the court below to refuse to strike the bill of [453]*453review from the files for the reason that the defendants bad failed to perform tbe decree of November 5, 1895. 2d. Tbey say, in tbe second place, tbat there is no error apparent on tbe face of tbat decree; and tbe error, if any there was, should have been remedied by appeal. 3d. In tbe third place, tbey say tbat, upon tbe overruling of their demurrer to tbe bill of review tbey should have been allowed to plead over.
1. As to tbe first assignment of error, it is undoubtedly tbe practice in chancery and tbe rule of law, subject, as it has been held, to some exceptions, tbat before a bill of review can be filed tbe decree must be first obeyed and performed; and tbat if, as in tbe case before us, money is directed to be paid, it ought to be paid before tbe bill of review is filed, though it may afterwards be ordered to be refunded. 2 Dan. Ch. Pr. 1582; Story, Eq. Pl. § 406; Ricker v. Powell, 100 U. S. 101, 25 L. ed. 527; Wiser v. Blackly, 2 Johns. Ch. 488. But tbe exceptions to tbe rule are equally well settled and established; and among them are poverty, want of assets, other inability to perform tbe decree. Davis v. Speiden, 104 U. S. 83, 26 L. ed. 660; Wiser v. Blackly, 2 Johns. Ch. 488. Here two at least of the defendants against whom tbe original decree bad been rendered showed by affidavit tbe want of assets to enable them to perform tbe decree; and they at least bad tbe right to file a bill of review without previous performance of the decree. Another of these defendants, Walbridge, died after tbe filing of tbe bill of review, but apparently before the motion to strike it from tbe files came up for bearing, and bis executrix became a party to tbe suit in bis stead. It may well be questioned whether, in her position of trust and responsibility, she should have paid out money of tbe estate under her charge to nonresident complainants, probably without assets in this District. But this is a question which it is not necessary for us to decide.
Tbe fact is tbat tbe court below permitted tbe bill of review to be filed, and refused to strike it from tbe files when moved to do so by the opposing parties upon this very ground of tbe failure of tbe parties filing it to perform tbe decree against them. This was tbe equivalent of a special license to file tbe bill without [454]*454such previous performance. In granting this license, or refusing to strike out the bill, the court acted in the performance of a sound judicial discretion (Davis v. Speiden, 104 U. S. 83, 26 L. ed. 660), and such discretion is not the subject of review in an appellate court, except, of course, as in all other cases, for the abuse of it.
In the case of Davis v. Speiden, 104 U. S. 83, 26 L. ed. 660, cited, which went up to the Supreme Court of the United States from this District, and in which the opinion was pronounced by Mr. Chief Justice Waite, who had also written the opinion in the case of Ricker v. Powell, 100 U. S. 104, 25 L. ed. 527, before cited, that court, after a careful and elaborate consideration of the history of the rule and of the decisions based upon it, said:
“Whatever may be said in such cases, which are really only bills in the nature of bills of review, and which can only be filed on special license, we think it clear that as to bills which relate to errors on the face of the decree alone, and which may be filed without leave, no such rule prevails. The filing without performance is in the nature of privilege, not jurisdiction. The courts of some of the States have so treated it (Forman v. Stickney, 77 Ill. 575), and we are clearly of the opinion that such is the better practice and fully recognized by all the early English cases. Performance does not establish the error, but only makes it the duty of the courts, when called on in a proper way, to inquire as to any errors that may have been committed. Whether the courts will enter on such an inquiry without performance depends upon the exercise of a sound judicial discretion applied to the facts of the particular case.”
This will suffice to dispose of the first assignment of error.
2. The second assignment of error brings up the vital question in the case, — whether there is error apparent on the face of the decree for which a bill of review will lie. We are clearly of opinion'that there is such error.
The decree adjudges that there was a loan of $2,500 made by the plaintiffs to the defendants, and that the 400 shares of stock had been delivered as security for the repayment of such loan. [455]*455There is absolutely uo allegation whatever in the bill of complaint upon which to found such an adjudication. The sole substantial allegation of that bill, after the statement of the execution of the contract by the parties, is that the true meaning and legal effect of the contract was and is that the transaction was a loan with collateral security for its repayment, and that the complainants had been so advised by counsel learned in the law. This is not a statement of fact, but merely of a conclusion of law, and a most erroneous and unwarranted statement of the legal effect of the document. If the English language has any meaning, the contract on its face is not one of loan and security for its repayment, but one of conditional sale, which is a very different thing. Now that the transaction may in fact have been one of loan and security is not at all impossible. The contract is a very singular one. There was something behind it which was not disclosed by the document itself. But whether the transaction was intended to cloak the taking of usurious interest, or was some kind of stock jobbing in stocks of problematical value, is of no consequence here. The fact remains that, while it was open to the complainants to set forth the true nature of the transaction, if it was not a conditional sale, as it purports to be on its face, they were most remarkably silent on the matter. One at least of the complainants must have known the actual facts. Why has he not stated them ? The other complainant, wbn sues only as a representative of a deceased party, may have no personal knowledge of the transaction, but she could base her allegations on information derived from her cocomplainant. She has not done so. Both of the complainants hold back the facts and content themselves with an allegation of advice received from counsel learned in the law as to the true meaning in law of the memorandum of contract under consideration. And we are wholly unable to see how on its face the memorandum can be held to mean anything of the kind. As we have said, it was competent for the complainants to allege that the transaction was one of loan and security therefor, and if the allegation was controverted, to prove the fact, if fact it was. But the allegation of a conclusion of law, and especially of an erroneous and [456]
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Mr. Justice Morris
delivered the opinion of the Court:
The appellants have assigned threefold error: 1st. They say that it was error in the court below to refuse to strike the bill of [453]*453review from the files for the reason that the defendants bad failed to perform tbe decree of November 5, 1895. 2d. Tbey say, in tbe second place, tbat there is no error apparent on tbe face of tbat decree; and tbe error, if any there was, should have been remedied by appeal. 3d. In tbe third place, tbey say tbat, upon tbe overruling of their demurrer to tbe bill of review tbey should have been allowed to plead over.
1. As to tbe first assignment of error, it is undoubtedly tbe practice in chancery and tbe rule of law, subject, as it has been held, to some exceptions, tbat before a bill of review can be filed tbe decree must be first obeyed and performed; and tbat if, as in tbe case before us, money is directed to be paid, it ought to be paid before tbe bill of review is filed, though it may afterwards be ordered to be refunded. 2 Dan. Ch. Pr. 1582; Story, Eq. Pl. § 406; Ricker v. Powell, 100 U. S. 101, 25 L. ed. 527; Wiser v. Blackly, 2 Johns. Ch. 488. But tbe exceptions to tbe rule are equally well settled and established; and among them are poverty, want of assets, other inability to perform tbe decree. Davis v. Speiden, 104 U. S. 83, 26 L. ed. 660; Wiser v. Blackly, 2 Johns. Ch. 488. Here two at least of the defendants against whom tbe original decree bad been rendered showed by affidavit tbe want of assets to enable them to perform tbe decree; and they at least bad tbe right to file a bill of review without previous performance of the decree. Another of these defendants, Walbridge, died after tbe filing of tbe bill of review, but apparently before the motion to strike it from tbe files came up for bearing, and bis executrix became a party to tbe suit in bis stead. It may well be questioned whether, in her position of trust and responsibility, she should have paid out money of tbe estate under her charge to nonresident complainants, probably without assets in this District. But this is a question which it is not necessary for us to decide.
Tbe fact is tbat tbe court below permitted tbe bill of review to be filed, and refused to strike it from tbe files when moved to do so by the opposing parties upon this very ground of tbe failure of tbe parties filing it to perform tbe decree against them. This was tbe equivalent of a special license to file tbe bill without [454]*454such previous performance. In granting this license, or refusing to strike out the bill, the court acted in the performance of a sound judicial discretion (Davis v. Speiden, 104 U. S. 83, 26 L. ed. 660), and such discretion is not the subject of review in an appellate court, except, of course, as in all other cases, for the abuse of it.
In the case of Davis v. Speiden, 104 U. S. 83, 26 L. ed. 660, cited, which went up to the Supreme Court of the United States from this District, and in which the opinion was pronounced by Mr. Chief Justice Waite, who had also written the opinion in the case of Ricker v. Powell, 100 U. S. 104, 25 L. ed. 527, before cited, that court, after a careful and elaborate consideration of the history of the rule and of the decisions based upon it, said:
“Whatever may be said in such cases, which are really only bills in the nature of bills of review, and which can only be filed on special license, we think it clear that as to bills which relate to errors on the face of the decree alone, and which may be filed without leave, no such rule prevails. The filing without performance is in the nature of privilege, not jurisdiction. The courts of some of the States have so treated it (Forman v. Stickney, 77 Ill. 575), and we are clearly of the opinion that such is the better practice and fully recognized by all the early English cases. Performance does not establish the error, but only makes it the duty of the courts, when called on in a proper way, to inquire as to any errors that may have been committed. Whether the courts will enter on such an inquiry without performance depends upon the exercise of a sound judicial discretion applied to the facts of the particular case.”
This will suffice to dispose of the first assignment of error.
2. The second assignment of error brings up the vital question in the case, — whether there is error apparent on the face of the decree for which a bill of review will lie. We are clearly of opinion'that there is such error.
The decree adjudges that there was a loan of $2,500 made by the plaintiffs to the defendants, and that the 400 shares of stock had been delivered as security for the repayment of such loan. [455]*455There is absolutely uo allegation whatever in the bill of complaint upon which to found such an adjudication. The sole substantial allegation of that bill, after the statement of the execution of the contract by the parties, is that the true meaning and legal effect of the contract was and is that the transaction was a loan with collateral security for its repayment, and that the complainants had been so advised by counsel learned in the law. This is not a statement of fact, but merely of a conclusion of law, and a most erroneous and unwarranted statement of the legal effect of the document. If the English language has any meaning, the contract on its face is not one of loan and security for its repayment, but one of conditional sale, which is a very different thing. Now that the transaction may in fact have been one of loan and security is not at all impossible. The contract is a very singular one. There was something behind it which was not disclosed by the document itself. But whether the transaction was intended to cloak the taking of usurious interest, or was some kind of stock jobbing in stocks of problematical value, is of no consequence here. The fact remains that, while it was open to the complainants to set forth the true nature of the transaction, if it was not a conditional sale, as it purports to be on its face, they were most remarkably silent on the matter. One at least of the complainants must have known the actual facts. Why has he not stated them ? The other complainant, wbn sues only as a representative of a deceased party, may have no personal knowledge of the transaction, but she could base her allegations on information derived from her cocomplainant. She has not done so. Both of the complainants hold back the facts and content themselves with an allegation of advice received from counsel learned in the law as to the true meaning in law of the memorandum of contract under consideration. And we are wholly unable to see how on its face the memorandum can be held to mean anything of the kind. As we have said, it was competent for the complainants to allege that the transaction was one of loan and security therefor, and if the allegation was controverted, to prove the fact, if fact it was. But the allegation of a conclusion of law, and especially of an erroneous and [456]*456unwarranted conclusion of law, is not the equivalent of an allegation of fact and to be taken upon default as the basis of a decree pro confesso, and ultimately of a final decree.
It has been held in numerous cases that, if the allegations of a bill of complaint are distinct and positive, they may be taken as true without proof, if the defendant makes no defense; but that, if they are indefinite, or if the demand of the complainant is in its nature uncertain, the requisite certainty must be afforded by proof. Ohio C. R. Co. v. Central Trust Co. 133 U. S. 83, 33 L. ed. 561, 10 Sup. Ct. Rep. 235; Thomson v. Wooster, 114 U. S. 104, 29 L. ed. 105, 5 Sup. Ct. Rep. 788; Craig v. Horine, 1 Bibb, 113; Williams v. Corwin, Hopk. Ch. 471. And it has also been held that a decree pro confesso admits the facts charged in the bill, but not the conclusions drawn therefrom, nor the conclusions of law. Koster v. Miller, 149 Ill. 195, 37 N. E. 46; Russell v. Lathrop, 122 Mass. 300. Whether the complainants in the present case could have supplied the fatal deficiency of allegation in their bill of complaint by the introduction of testimony need not here be determined, since there was no testimony taken, and the fatal deficiency remains. That bill as it stands is wholly insufficient on which to base any decree. And it is error apparent on the face of the decree if, taking the whole previous record into consideration, exclusive of the evidence, it is plain that no cause of action has been stated sufficient to justify the decree. Shelton v. Van Kleech, 106 U. S. 532, 27 L. ed. 269, 1 Sup. Ct. Rep. 491; Buffington v. Harvey, 95 U. S. 99, 24 L. ed. 381.
It is unnecessary to pursue the subject further. We think the authorities fully warrant the holding that the bill of complaint in this case was fatally defective in stating no cause of action; that the decree which was rendered was not warranted by the bill; that, therefore, there was error apparent on the face of the decree, and that such decree was properly vacated in pursuance of the bill of review filed for that purpose.
The se'cond assignment of error, therefore, we must regard as untenable.
3. The appellants do not greatly, if at all, insist upon their [457]*457third assignment of error, which is to the effect that, upon the overruling of their demurrer to the bill of review, they should have been permitted to plead over to that bill. Plainly the position is wholly untenable. There was no place to plead over; nothing to be reached by plea or answer to the bill. The bill of review was filed solely upon the ground of error of law apparent on the face of the decree. A demurrer to the bill raised the sole and only question that could be raised, and when that was disposed of there was nothing else left in the case. Neither as a matter of right nor as a matter of privilege were the defendants to that bill of review entitled to any further pleading.
Besides the questions of law which have been discussed, it is to be noted that two of the defendants who signed the memorandum of agreement — namely, Maxwell and Walbridge — are not shown to have had any connection with the transaction other than that of attaching their names to the paper. If the contract was really one of loan and security for its repayment, the loan, so far as the paper shows, was made to Chase alone, and the security was given by Tyrer. Maxwell and Walbridge had nothing to do either with the receipt of the money or the transfer of the stock, and it was manifestly improper and beyond the jurisdiction of the court to charge them as borrowers of the money without some allegation in the bill of complaint that they were jointly interested with Chase and Tyrer in the transaction. For this reason alone, even if for no other reason, the decree was fatally defective on its face, so far as Maxwell and Walbridge were concerned.
It follows, in our opinion, that the action of the court below in overruling the demurrer to the bill of review, and vacating the decree reviewed and the previous proceedings in the cause, was right and proper. That action left the original bill of complaint standing, with leave to the defendants to plead, answer, or demur thereto within twenty days. That action probably does not go far enough. From what we have said, it must be held, upon the interposition of a demurrer, by the defendants, that the bill is fatally defective, and must be amended if the complainants would succeed in their cause. The order may as [458]*458well provide that this bill be dismissed, -unless the complainants therein shall amend the same within a specified time. But the course of procedure in this regard will be left to be determined by the court below.
The order appealed from will be affirmed, with costs; and the cause will be remanded to the Supreme Court of the District of Columbia for further proceedings therein in accordance with law, and not inconsistent with this opinion. Affirmed.