5 Mason C.C. 303 | U.S. Circuit Court for the District of Rhode Island | 1829
The present is a somewhat novel proceeding in this circuit; and I am not aware, that, in any other circuit of the United States, any general course of practice has prevailed, which would su-percede the necessity of acting upon this, as a case of first impression, to be decided upon the general principles of courts of equity. It comes before the court upon a petition for leave to file a bill of review of a decree rendered in this court at November term, IS23, principally upon the ground of a discovery of new matters of fact. The petition was filed at November term, 1827, and affidavits have been read in support of it.
Before I proceed to consider the particular grounds of the present petition, it may be well to glance at some of the regulations, which govern courts of equity in relation to bills of review, that we may be better enabled to judge of their application to the courts of the United States. The ordinance of Lord Bacon constitutes the foundation of the system, and has never been departed from. It is as follows. “No decree shall be reversed, altered, or explained, being once under the great seal, but upon a bill of review. And no bill of review shall be admitted, except it contain either error in law, appearing in the body of the decree, without farther examination of matters of fact, or some now matter, which hath arisen after the decree, and not any new proof, which might have been used, when the' decree was made. Nevertheless, upon new proof that is come .to light after the decree made, and could not possibly have been used at the time when the decree passed, a bill of review may be grounded by the special license of the court, and not otherwise.” Beanie, Orders Ch. 1. A bill of review, therefore, lies only, when the decree has been enrolled under the great seal in chancery. If it has not been so enrolled, then for error of law apparent upon the decree the remedy is by a petition for a rehearing. Perry v. Phelips, 17 Ves. 173, 178. But if the ground of the bill is new matter, discovered since the decree, then the remedy is by a supplemental bill in the nature of a bill of review, and a petition for a rehearing, which are allowed by special license of the court Redesd. Eq. Pl. 65 (78), 81; Coop. Eg. Pl. 88, 89. 90, 91; Beame, Orders Ch. 2, 3, notes; Sheffield v. Duchess of Buckingham, 1 West, 682; Mont Pl. Eq. p. 330. c. 12; Norris v. Le Neve, 3 Atk. 26; Perry v. Phelips, 17 Ves. 173; Blake v. Foster, 2 Ball & B. 457, 460. This distinction between a bill of review and a bill in the nature of a bill of review, though important in England, is not felt in the practice of the courts of the United States, and perhaps rarely in any of the state courts of equity in the Union. I take it to be clear, that in the courts of the United States all decrees as well as judgments are matters of record, and are deemed to be enrolled as of the term, in which they are passed. So that the appropriate remedy is by a bill of review.
In regard to errors of law, .apparent upon the face of the decree, the established doctrine is, that you cannot look into the evidence in the case in order to show the decree to be erroneous in its statement of the facts. That is the proper office of the court upon an appeal. But taking the facts to be, as they are stated to be on the face of the decree, you must show, that the court have-erred in point of law. Mellish v. Williams, 1 Vern. 106; Cranborne v. Delahny, 1 Freem. 169; Combs v. Proud, 1 Ch. Cas. 54. 1 Freem. 181; 3 Rep. Ch. 18; Hardr. 174; Perry v. Phelips, 17 Ves. 173; O'Brien v. Connor, 2 Ball & B. 146, 154. If, therefore, the decree do not contain a statement of the material facts, on which tire decree proceeds, it is. plain, that there can be no relief by a bill of review, but only by an appeal to some superior tribunal. It is on this account, that in England decrees are usually drawn up-with a special statement of, or reference to, the material grounds of fact for the decree. Combs v. Proud, 1 Ch. Cas. 54; Brend v. Brend, 1 Vern. 214, 2 Ch. Cas. 161; Bonham v. Newcomb, 1 Vern. 216; O’Brien v. Connor, 2 Ball & B. 146, 154. In the courts of the • United States the decrees are usually general. In England the decree embodies the substance of the bill, pleadings, and answers;. in the courts of the United States the decree ■ usually contains a mere reference to the an- •
In regard to new matter, there are several considerations deserving attention. In the first place the new matter must be relevant and material, and such as, if known, might probably have produced a different determination. Bennet v. Lee, 2 Atk. 529; O’Brien v. Connor, 2 Ball & B. 155; Earl of Portsmouth v. Lord Effingham, 1 Ves. Sr. 429. In other words, it must be new matter to prove what was before in issue, and not to prove a title not before in issue (Coop. Eq. Pl. 91; Patterson v. Slaughter, Amb. 292; Young v. Keighly, 16 Ves. 348; Blake v. Foster, 2 Ball & B. 451, 462); not to make a new case, but to establish the old one. In the next place the new matter must have come to the knowledge of the party since the period, in which it could have been used in the cause at the original hearing. Lord Bacon’s ordinance says in one part it must be, “after the decree:” but that seems corrected by the subsequent words, “and could not possibly have been used at the time when the decree passed,” which point io the period of publication. Lord Hardwicke is reported to have said, that the words of Lord Bacon are dark; but that the construction has been, that the new matter must have come to the knowledge of the party after publication passed. Patterson v. Slaughter, Amb. 293. The same doctrine was held in Norris v. Le Neve, 3 Atk. 25, 34, and has been constantly adhered to since. A qualification of the rule quite as important and instructive is, that the matter must not only be new, but that it must be such as that the party, by the use of reasonable diligence, could notliaveknown; for if there be any laches or negligence in this respect, that destroys the title to the relief. That doctrine was expounded and adhered to by Lord Eldon in Young v. Keighly, 16 Ves. 348. and was acted upon by Lord Manners in Barrington v. O’Brien, 2 Ball & B. 140. and Blake v. Foster, Id. 457, 461. It was fully recognized by Mr. Chancellor Kent, and received the sanction of his high authority in Wiser v. Blackly, 2 Johns. Ch. 488, and Barrow v. Rhinelander, 3 Johns. Ch. 120. And in the very recent case of Bingham v. Dawson. 1 Jac. 243, Lord Eldon infused into it additional vigor.
Upon another point there is not perhaps a uniformity of opinion in the authorities. I allude to the distinction taken in an anonymous case in 2 Freem. 31, where the chancellor said, that “where a matter of fact was particularly in issue before the former hearing. though you have new proof of that matter. upon that you shall never have a bill of review. But where a new fact is alleged, that was not at the former hearing, there it may be a ground for a bill of review.” Now, assuming that under certain circumstances new matter, not evidence, that is, not in issue, in the original cause, but clearly demonstrating error in the decree, may support a bill of review, if it is the only mode of obtaining relief (see Norris v. Le Neve, 3 Atk. 33, 35; Roberts v. Kingsly, 1 Ves. Sr. 238; Earl of Portsmouth v. Lord Effingham. Id. 429; Redesd. Eq. Pl., Last Ed., 67; 1 Mont Pl. Eq. 332, 333; Wilson v. Webb, 2 Cox, 3; Standish v. Radley, 2 Atk. 177. See, also, Lord Redesdale’s observations in his third edition of his Equity Pleadings, p. 67); still it must be admitted, that the general rule is, that the new matter must be such as is relevant to the original case in issue. Lord Hardwicke, in Norris v. Le Neve, 3 Atk. 33, 35, is reported to have admitted, that a bill of review might be founded upon new matter not at all in issue in the former cause, which seems contrary to his opinion in Patterson v. Slaughter, Amb. 293 (see, also, Young v. Keighly, 16 Ves. 348, 354; Blake v. Foster, 2 Ball & B. 457, 462); or upon matter, which was in issue, but discovered since the hearing. But the very point in 2 Freem. 31 (if 1 rightly understand it), is that a newly discovered fact is ground for a bill; but not newly discovered evidence in proof of any fact already in issue. This seems to me at variance with Lord Bacon's ordinance, for it is there said, that there may be a review upon “new matter, which hath arisen in time after the decree,” and also “upon new proof, that has come to light after the decree made, and could not possibly have been used at the time when the decree passed.” It is also contrary to what Lord Hardwicke held in the cases cited from 3 Atk. 33, and Amb. 293. Lord Eldon, in Young v. Keighly, 16 Ves. 348, 350, said: “The ground (of a bill of review) is error apparent on the face of the decree, or new evidence of a fact materially pressing upon the decree, and discovered at least after publication in the cause. If the fact had been known before publication, though some contradiction appears in the cases, there is no authority, that new evidence would not be sufficient ground.” That, was also the opinion of Lord Manners in Blake v. Foster. 2 Ball & B. 457. Mr. Chancellor Kent, in Livingston v. Hubbs, 3 Johns. Ch. 124, adopted the like conclusion; and he seemed to think, that such new evidence must not be a mere accumulation of witnesses to the same fact; but some stringent written evidence or newly discovered papers. Gilbert. in his Forum Romanum, p. 186, c. 10, leans to the same limitation, for he says, that in bills of review, “they can examine to nothing. that was in the original cause, unless it be matter happening subsequent, which was not before in issue, or upon matter of record or writing not known before, for if the court should give them leave to enter into proofs upon the same points that were in issue, that
In the next place it is most material to state, that the granting of such a bill of review is not a matter of right, but of sound discretion in the court. Sheffield v. Duchess of Buckingham, 1 West, 682; Norris v. Le Neve, 3 Atk. 33; Gould v. Tancred, 2 Atk. 533. It may be refused, therefore, although the facts if admitted would change the decree, where the court, looking to all the circumstances, deems it productive of mischief to innocent parties, or for any other cause unadvisable. Bennet v. Lee, 2 Atk. 528; Wilson v. Webb, 2 Cox, 3, and Young v. Keighly, 16 Ves. 348, are strong exemplifications of the principle. These are the principal considerations, which appear to me-useful to be brought into view upon the present occasion. Let us now advert to the grounds upon which the petition is framed, and see how far any are applicable to them. The original bill was brought against Thomas Arnold (whose administrator is now before the court) for an account and settlement of his brother Jonathan Arnold's estate, upon which he had administered. The case is reported in Dexter v. Arnold [Case No. 3,855], and I refer to that for a summary of the proceedings and final decree.
In preferring the present petition, the proper course of proceeding has been entirely mistaken. The present counsel for the petitioner is not responsible for those proceedings, they having taken place before he came into the cause. A petition for leave to file a bill of review for newly discovered matter should contain in itself an abstract of the former proceedings, the bill, answers, decree, &c. and should then specifically state what the newly discovered matter is, and when it first came to the party’s knowledge, and how it bears on the decree, that the court may see its relevancy and the propriety of allowing it Coop. Bq. PI. 92. The present petition, in its original form, contained nothing of this sort, but referred to an accompanying bill of review, as the one, which it asked leave to file, and then simply affirmed the facts stated in It to be true. This was sufficiently irregular. But upon looking into this bill of review the grounds of error are stated in a very loose manner, and in so general a form as to be quite inadmissible.
The first error assigned is in matter of law, and it is, that Thomas Arnold, the administrator, ought to have been charged with interest upon all sums of money, which he had received as administrator, because the said sums were used by him. The master in his report had declined to allow interest; and upon an exception taken the court confirmed his report on this point. I see no reason for changing the decree on this point, for the reasons stated in the cause of Dexter v. Arnold [Case No. 3.855], and there is no pretence to say, that there is any such proof of the use of the money in the report of the master, as justifies a different conclusion. There is no error in this respect apparent on the face of the master’s rejjort, or the decree. The allowance or disallowance of interest rests very much upon circumstances, and slight errors in this respect are not always held fatal. See Gould v. Tancred, 2 Atk. 533. There is no error apparent, therefore, on which a review ought to be granted.
The next ground assigned is, that Thomas Arnold did receive large sums of money and other property, which he has not accounted for before the master, and for which he ought to account; and that since the decree, the petitioner hath discovered new and further evidence in relation thereto, which would have materially changed the report of the master and the decree. The petition does not state what the new evidence is, nor when discovered, and it is quite too vague for any order of the court The bill then proceeds, very irregularly, to require, that the administrator of Thomas Arnold should answer certain interrogatories as to the cargoes of the ship Friendship. It then states, that Thomas Arnold received six shares in the Tennessee Land Company; and that he received 8.000 dollars on a policy of insurance on the brig Friendship; and that he received large consignments of property from Vincent Gray in Cuba in bills of exchange, &c. belonging to Jonathan’s estate; and finally, that he received divers other large sums of money as agent of Jonathan. Now, it must be manifest, that upon allegations so general and indistinct no bill of review would lie. Here is no assertion of newly discovered evidence to maintain one. Such a bill, so framed, ought never to be allowed by a court acting upon the correct principles
The case has, however, been argued, and with great ability, upon its merits; and waiving for the present any farther reference to the form of the proceedings, I will proceed to the consideration of the points made at the bar. The first point is one made by the defendant, and being preliminary in its nature, must be disposed of before the plaintiff can be farther heard. It is said to be a rule in equity, that where a party has less decreed to him than he thinks himself entitled to, he cannot bring a bill of review; for that lies only in favor of a party against whom there is a decree. For this the opinion of elementary writers (2 Madd. Ch. Pr. 412; 1 Har. Ch. Pr. 86), and the case of Glover v. Portington, Freem. 188, 2 Eq. cas. Abr. 174, is cited. The case, as here reported, certainly supports the doctrine. But it appears to me, that, if the doctrine is correct, it is so only in eases, whore there is no error apparent on the face of the decree, and no newly discovered matter to support a bill of review, for then the proper remedy is by appeal. If there he no such remedy by appeal, but only by bill of review, it would be strange, if a material error could not be redressed upon such a bill by the party to whom it had been injurious; that if a man had 10.000 dollars due him. and had a decree for 100 dollars he was conclusively bound by an error of the court. The decision, reported in Freem. 182, was made by the master of the rolls, who allowed the demurrer: but from the report of the same case in 1 Ch. Cas. 51, it appears that it was afterwards reheard before the lord chancellor and Baron Bainsford; and the demurrer was overruled. See same case cited Com. Dig. “Chancery.'’ G, to the same effect. So that the final decision was against the doctrine for which it is now cited. And Lord Nottingham, a few years afterwards, in Vandebende v. Levingston, 8 Swanst. 625, resolved, that the plaintiff may have a bill of review to review a decree made for himself, if it be less beneficial to him than in truth it ought to have been. We may then dismiss this objection.
We may now advance to the examination of the points made by the petitioner in support of his petition for a review, assuming that the amended bill of review is to be received. pro hoc vice, as such a petition. I have already stated, that it is utterly defective in the essential ingredients of such a petition, in not stating with exactness the nature of the new evidence, and when it was first discovered. It is not sufficient to say, that the petitioner expects to prove error in this or that respect: or that he has discovered evidence, which he hopes will establish this or that fact. But he must state the exact nature and form of the evidence it-i self, and when discovered. If written evd- ! donee, it must be stated, aud its direct bearing shown. If of witnesses, what facts the witnesses will prove; and when the party ; first knew the nature of their testimony. It ■ is impossible otherwise for the court to judge, whether the evidence is decisive, or is merely presumptive or cumulative; whether it goes vitally to the ease, and disproves it, or only lets in some new matter, confirmatory or explanatory of the transactions in the former decree. The party must go farther, and establish, that he could not, by reasonable diligence before the decree, have procured the evidence. Now. in every one of these particulars, the amended bill, quasi a petition, is extremely deficient. I have looked it over carefully, and cannot find, that it paints out a single written paper, which disproves the original case, or names a single witness, whose testimony, if admitted, would overturn it. It deals altogether in general allegations, that certain things are expected to be proved; and, like an original bill, proceeds to ask a discovery from the defendant of letters and papers in her possession as administrator, relative thereto. There are indeed, in the accompanying affidavits, some papers produced and relied on; but they cannot supply the defects of .the original petition.
1. The first charge is in effect, that Thomas Arnold, as administrator of Jonathan Arnold, received certain property from Vincent Gray in Cuba, belonging to Jonathan's estate, which he has never inventoried or accounted for. The specifications under this head are: (1) The receipt of 40 boxes of sugar, upon which charges were paid out of Jonathan’s estate, amounting to .$100: (2) The remit
But as to the matter of fact; Mr. Gray’s letters show, that the 40 boxes of sugar belonged to Thomas Arnold, and not to Jonathan Arnold, thus establishing the incorrectness of this part of the petitioner’s case, and leaving only the $190 in his favour. Then, ns to the bill on Davis; Thomas Arnold, on his examination before the master, expressly stated, that it had never been paid, Davis being insolvent And there is not a tittle of new evidence, now offered, to show that he did receive it. It is therefore a mere effort to rehear the original cause on this point. Then, as to the 500 dollars received by Mathewson. In the report 270 dollars is credited lo Jonathan's estate on this account; and the only question is, whether the remaining 230 dollars ought to have been credited. Mr. Gray, in his letters, (which, by the by, are mere statements now made, and not originals written at the time of the transactions, and are not sworn to by him,) does not pretend to any absolute certainty, as to the parties to whom the money belonged. He says in that of the 14th of April, 1S2C, that he had received of De Ln Motte $1,9S4, part of which he remitted to Thomas Arnold by the bill drawn on Davis. He did not then recollect how, or when, the balance was remitted. In his letter of the 14th of April. 1S27, he states, that on examining his old accounts, &c. he finds, that he passed to the credit of the ship Tyre, Mathewson, master, for account of Thomas Arnold, in July 180S, 8230, and in September of the same year, $270, in all 500 dollars; and he presumes, that this was the balance then collected. In his letter of the 27th of February, 1S28, he adds, that the money, collected of De Ln. Molte, belonged to Jonathan Arnold, and that the bill on Davis, the $500, the $190, and his commissions. made up the whole sum. Such is the explanation given by Mr. Gray, at the distance of 20 years after the original transactions; and it is too much to say, that his recollections, after such a length of time, ought to overturn the solemn proceedings before the master. It is, at best, testimony only of a presumptive character, cumulative in its nature, to a litigated fact, and, if admissible at all, as a ground for a review, is open to the suggestion of possible mistake. But it docs so happen, that there is before the court a letter of Mr. Gray to Thomas Arnold, written on the 12th of April. ISOS, (and which, there is much reason to believe, was, among other papers from him, laid before the master upon the hearing,) which may fairly lead to the belief, that Gray is now mistaken in supposing, that the money belonged exclusively to Jonathan Arnold. That letter begins by saying. “1 have liquidated your accounts with Don Pablo De Motta. and taken the acceptance on the widow P. & H. for the balance due. Ac. for 2.0SS dollars 3%.” It then goes on to state, that Mr. Barker, of Charleston, has requested him to pay into his hands the money received from De La Motto, which he declined. It then adds. “On examination of the accounts, if any thing should appear to be due to Mr. Barker over and above the 1.000 dollars heretofore received, I will remit it to him. or pay it into the hands of Mr. Bower. However, as you know better than I do. what sum ought to be paid to Mr. Barker, I wish you to settle the amount with him.” If any thing is clear, from this language, it is, that Mr. Barker had, or was supposed to have, an interest in this very fund, and that Thomas Arnold was called upon to discharge it And the first words in the letter, “your accounts,” seem to indicate, that Thomas Arnold also might have a personal interest in the fund. If Mr. Barker had an interest, what proof is there, that it
2. The next charge is, that in the account settled on the 31st of March. 1801. between Thomas Arnold and Jonathan Arnold, there was debited an item for one half of the premium on the schooner Fame, on her voyage home, of 180 dollars and 12 dollars interest, in all 192 dollars; which it is now said is erroneous, because no. such insurance was made or premium paid, the vessel and her cargo being then insured out and home, by the Providence Insurance Company, for more than the value of both. One of the charges, in the original bill, was of errors in the settlement of this very account; and upon the hearing, the court decreed, that the account should' stand, subject to any surcharge and falsification by the plaintiff. Of course, this item was open for contestation before the master. It was confirmed, as to this item, by the master; and if the court now reviews it, it undertakes, after a lapse of 2S years and the death of both parties, to open a settled account upon a mere presumption of mistake, founded upon a very imperfect knowledge of the real circumstances. Thomas Arnold was liable to examination before the master for every item in his account. He might have been inquired of, as to the facts, where the insurance was made, and when the premium was paid; and as to all other material circumstances. The petitioner waived such inquiry in the very case, in which he was keenly on the scent to discover errors. It does not appear that he made any inquiry, or was misled by any attempted misrepresentation or concealment on this head. If he then used no reasonable diligence in the matter, then before him, it must be a strong case to justify an interposition of the court now in his favour.
But what is the newly discovered evidence to falsify the item? It now appears, that by a policy underwritten on the 24th of July, 1800, by the Providence Insurance Company; Thomas Arnold for Jonathan Arnold, Barker & Lord, and James Sehmeibar, caused insurance to be made of 9,000 dollars on the schooner Fame and cargo, viz. 7.000 dollars on the cargo, and 2.000 dollars on the vessel, from Charleston to Martinico, at and from thence to any one port in the United States, at .a premium of 17 per cent.; with liberty to proceed’ from Martinico to any other port or ports in the West Indies, by adding three per cent for every English windward port, and five per cent, for every other port. Upon the back of the office copy of the policy is the following indorsement. “October 20. Received information of her safe arrival at Charleston; touched at Trinidad and St Thomas; for which add S per cent, to the premium. Return 9 per cent on $-deficiency of cargo from St. Thomas.’’ This indorsement was doubtless made by the proper officer of the insurance company; but what settlement was actually made does not appear by any competent evidence. It appears, however, from William Holroyd's papers, that Barker & Lord were charged in settlement by Thomas Arnold with one half of the premium of the cargo of the Fame. 8980.48; and the other half of the premium on the same cargo, viz. $9S0.48. was charged to Jonathan Arnold, in the above account, settled in March, 1S01. It is impossible. I think, from such facts alone, to ascertain, whether the charge of the 192 dollars for premium on the vessel home was correct or not.; non constat, that there might not have
The next item is a supposed error in the account settled in March, 1801, where Jonathan Arnold is charged with the payment of j 82,267.82, principal and interest on his note to Joseph Rogers. It is now said, that by I newly discovered evidence the petitioner can j show, that only 81.693.95 was in fact paid on < that account; and for the payment of this, Thomas Arnold had, in 1798, bills, the property of Jonathan, to the value of £800 sterling, which he had used and enjoyed the interest of. . Many of the remarks already made apply with increased force to this item. In the first place, there is a settled acknowledgment between the parties, that the sum is right, and the note was paid. In the next place, as to the bills of exchange. They are duly credited and admitted in the same account, as correctly applied. How then can we say, that they were used differently from what the parties intended ? There is no new evidence, as to these bills; and they were included in the report of the master. But what is the new evidence now suggested as to the item of S2.207.82? It is simply this. Mr. William Holroyd was agent of some sort for Rogers, (we do not know how far,)' and in his books (for he is dead) there are-now found two credits to Joseph Rogers, one, under date of October 5, 1799, of $600, “received from Thomas Arnold in part of Jonathan Arnold’s note;” the other under date of November 9, of the same year, of “amount of Thomas Arnold’s note, $1.100, deduct discount, $6.05, viz. $1.093.95,” making together-the amount of $1,693.95. No other credits, appear on Holroyd’s books. Rogers is also dead, and in his books no other credits can-be found in his accounts with Holroyd; and what is curious enough, the credit of $000 is-stated to be “cash in part of ,T. Arnold’s, note,” and not of Jonathan’s. And in Rogers’s cash account even the whole of these-sums is not credited. What then is the plain amount of this evidence? not, that Thomas Arnold never paid the sum of $2,267.82 on Jonathan’s note; but that the payments cannot be distinctly traced, at this distance of time, in either Holroyd’s or Rogers’s books. And suppose they cannot Is a settled account to be opened, because thud persons, to whom payments have been made, omit to keep correct books, or enter full credits? Is their omission to prejudice the rights of others; and to overturn the deliberate settlements of parties? Are we to indulge in.presumptions, that the parties did not know their own concerns, and that there has been fraud or mistake, because we cannot now trace back the origin of payments acknowledged by them? What proof have we, that the sums stated in these books were payments on account of the very note charged in the settlement? The payment of $1,093.95 purports to be on Thomas’s note; how can we say, that it was on Jonathan’s? The court is, then, called upon to re-examine th’s account upon mere surmises and conjectures; and the petitioner now demands, that the original note of Jonathan should be proved to verify the payment, exactly as if this were an original bill for an account, and a discovery. The original bill sought to set aside the settled accounts; leave was given to surcharge and falsify; and after a decree confirming the account, a discovery is sought upon new evidence of the loosest texture, and most inconclusive nature. The evidence, such as it is, was open to the plaintiff at the original hearing, if he had chosen to look for it, and by reasonable diligence it might then have been obtained, as well as now. If it had been obtained, I think it would have come to nothing. But as a foundation of a bill of review it is wholly inadmissible. I observe too, that the master states, that this very item was in controversy before him; and that Holroyd’s books were examined for the purpose of explaining one or more payments to Rogers by Thomas Arnold on Jonathan's account.
The next item is, that there was an insurance at Malaga, of 88.000, on the brig Friendship’s cargo, from that port to the Mediter-
The next charge is, that in the master’s report an allowance is made for a note of Jonathan Arnold to Minturn & Ohamplin, indorsed by Thomas Arnold, and by him paid to Joseph Jenkins, viz. $S24.12%; whereas Min-ium & Ohamplin had received 32 bags of pimento belonging to Jonathan, and had sold the same for $253, and applied the proceeds towards the discharge of the same note. It is sufficient to say, that there is no proof to this effect; nor any newly discovered evidence offered to support the statement. No reason is pretended, why Minturn & Champ-lin’s accounts were not investigated at the original hearing.
The next charge is, as to the Tennessee Land Company shares, owned by Jonathan Arnold, the proceeds of which have been received by Thomas Arnold. The whole number owned by Jonathan was fifteen; Thomas accounted before the master for nine shares, as all received by him. The petitioner had the most ample means, by a search in the proper public office at Washington, to have ascertained the whole amount received by Thomas on the shares, if he had used any diligence. The case, therefore, falls precisely within the doctrine of Lord Eldon in Bingham v. Dawson, 1 Jac. 243. But the receipt, now produced from the public records at Washington, signed by Samuel Dexter, satisfactorily establishes, that Jonathan had long before sold the six shares, now in controversy, to Dexter. And that was the very explanation asserted before the master by Thomas Arnold. There is not a shadow of proof, that he ever received on these shares any money, which he has not accounted for. I pass over the next charge, which respects the £100 note, included in the mortgage on the Paget farm. It was disposed of upon an exception of the plaintiff in the former decree, which is reported in Dexter v. Arnold [Case No. 3,855]. No new evidence on this point is pretended. The next item is for an allowance made out of Jonathan's estate in the master’s report of the sum of ¥4.800 and upwards, due from Jonathan’s estate to the estate of Welcome Arnold, and secured by a mortgage given by Jonathan to Thomas Arnold, as administrator of Welcome, and which was allowed him upon his agreeing to cancel the mortgage, which he has not done, but refused ever after-wards to do. The mortgage appears to have been given to Samuel G. Arnold, as attorney of Thomas Arnold and Patience Arnold, administrators of Welcome Arnold. I agree, that it was the duty of Thomas Arnold to procure a cancellation of that mortgage after the credit was allowed, whether he made an express promise to do so, or not If he had a right of retainer, as administrator on both estates, he had a right to the credit allowed in settling the account It was not matter of exception, at that time, that it was done; and it furnishes no ground of review now. The proper remedy is by an original bill to com pel satisfaction to be entered on the mortgage, and a re-delivery or cancellation of it. To such a bill the administratrix of Thomas Arnold might be properly made a party; at least for the purpose of compelling an application, or re-payment of sthe sum credited, if the mortgage deed is not canceled, and the credit has not been already made p> Welcome’s estate. If such a suit should be unproductive, I do not mean to say, that there might not be circumstances, upon which this court might give leave for a bill of review, in order, that the credit might be struck out, if Jonathan's estate were to sustain a real in
I have tifus gone over all the principal grounds for the bill of review, supposing them to be before the court with all duo distinctness and particularity, and in a shape regular and tangible. If I had more leisure I might comment, somewhat more at large, upon the principles applicable to this subject. But it being my deliberate judgment, that the ease is not a fit one for a review, I content myself with ordering, that the petition be dismissed with costs.
The district judge concurs in this opinion, and therefore let the petition be accordingly dismissed.