Webb v. Pell

1 Paige Ch. 564, 1829 N.Y. LEXIS 397, 1829 N.Y. Misc. LEXIS 10

• Court: New York Court of Chancery
• Decided: August 4, 1829
• Status: Published

Opinion

The Chancellor :—The affidavit of the complainants’ solicitor shows that a subpoena was taken out with a bona fide intent to serve the same within the five years. This is sufficient to remove all objection as to the time in which this suit was brought. It was not necessary to obtain any leave to file the bill of review. That is only necessary where it is brought upon the discovery of new matter. (Newland, 190; Mitford, 78.) But the complainants were irregular in not *making a deposit to answer the costs. By the practice of the English Court of Chancery, a deposit of £50 was required on filifig a bill of review, whether the same was founded upon the discovery of new matters, or upon error in law, apparent on the face of record. (Hind, 58; Gilb. For. Rom. 186; 1 Grant’s Pr. 28.) In analogy to the deposit required on appeals, there must be a deposit here on a bill of review of $100.

(a) But as the complainants’ counsel has acted under a mistake as to the practice, the deposit may now be made on payment of the costs of this application. The bill must be dismissed with costs, unless the deposit is made and these costs paid within twenty days.

The Revised Statutes having increased the deposit required on appeals to $250 after the first of January, 1830, it is presumed the deposit on a hill of review upon a decree of the Chancellor will be increased to the same amount after that time.[1]

See sec. 334, N. Y. Code.