Barnum v. McDaniels

6 Vt. 177 | Vt. | 1834

The opinion of the court was pronounced by

Williams, Chancellor.

— This is a bill of review, brought to reverse a decree made at the last term of this court, in the case of McDaniels vs. Barnum. — 5 Vt. Rep. 279.

A bill of review can only be brought for errors apparent on the decree, or upon some new matter proved to have been discovered since the decree, as a release, receipt, &c. The errors complained of, as apparent on the face of the decree, must be errors of law. It cannot be assigned for error that any of the matters decreed are contrary to the proof — that the court did not give sufficient weight to one piece of testimony, or the testimony of any particular witness, or that they laid too much stress upon another, in the opinion which they gave. A fact, misunderstood by the court, and not introduced into the. decree, may be ground for appeal, but not for a bill of review. — O’Brien vs. O’Conner, 2 Ball & Beatty, 154.

Moreover, a bill of review may be brought ast any time within twenty years, and if the party has performed the de-1 cree, may be brought as a writ of right. Unless, therefore, there was an error apparent in the decree, this bill must have been dismissed on that ground alone,, and could- not be sustained, because the chancellor who pronounced the decree gave insufficient reasons therefor, or because -the court did hot give sufficient credit to the testimony of the witness. The causes to which we have been referred of Blake vs. Cutter in Windham county, and of Arms vs. Mead in Washington county, were not bills of review, but were petitions for re-hearing, preferred in the usual and ordinary manner, within the time limited by the rules of this court, and the practice of courts of chancery, and were heard and decided upon the principles applicable to those petitions.

In this case, we have not, on that ground alone, come to the conclusion to dismiss this bill, but have re-examined the whole case as on a re-hearing. The counsel have argued it as upon a re-hearing, and we have again examined all the testimony, and are fully satisfied with the decree made at the last term, and the reasons given therefor. No party can ask for a decree on the testimony of a single witness, procured qs was the testimony of the only witness in this case. If the deposition of this witness had been taken in the usual and proper manner, it would have remained liable to all the objections which were made to it. The witness would have appeared in the same character, and the conduct of the party in obtaining the testimony would have been equally objectionable. There would still have been wanting testimony derived from such a source, that it would be safe to place full and implicit reliance thereon, on which to form a decree, taking from one man a large sum of money and giving it to another.

The members of the court were unanimous the last time in making the decree, and although there has been some change in our members, we are equally unanimous at this time in saying, that it ought not to be reversed.

The bill must therefore be dismissed with cost.