John Barnes v. Turner Dickinson.
From Wayne.
Whether a bill to review a decree of the Court can be filed in a Cour. below. Q.u ?
A bill of review for newly discovered testimony cannot be sustained, if the discovery was made in time to have been brought forward in either a re-amended or supplemental bill.
It is an error to say that an injunction is of course waived by an amendment. But an injunction is never propped by an amendment
This was a bill of review for matter of fact, filed in the Court below. The cause sought to be reviewed was decided in this Court, and is reported ante 273.
The bill charged, that since the trial at law, between the same parties, (Law casesr i voL 346,) the Plaintiff *327had discover'd that the witness Rebecca Hicks had been bribed by the Defendant, and had on that trial been guilty of perjury. The Plaintiff then averred that he did not discover the fact abeveniemioned “until after the filing of the said original bill,” and at the return Court of raid bill, his Counsel moved to amend the same so as to charge the said newly discovered matter, when the Court derided that an amendment to said bill could not be granted, and the injunction retained. The prayer of the failÍ was, that the injunction might be continued, and for general relief.
On the last Circuit, his honor Judge Non woo», on the motion of the Defendant, dismissed the bill for want of jurisdiction, it being a bill to review a decree of the Supreme Court. From this decree the Plaintiff appealed.
The cause was submitted without argument, by Gas-Inn, for the Plaintiff and by Badger & TV. 11. Haywood, for the Defendant.
Henderson, Chief-Justice.
— This is a bill of review for error in fact in a former decree, made in this Court. Waiving every other objection, I think that the bill cannot be sustained, because it appears in the bill itself, that the error, or rather the cause of complaint, w as known to the Plaintiff, at the return term of the original bill, time enough for him to have availed himself of it in that suit. For if the bill did not embrace it, it might have been amended ; or it' that could not have been done, it might have been brought before She Court by supplemental bill. The necessity, under which the Plaintiff says ho was placed, of abandoning his injunction, if iie amended his bill, (if in fact it did exist,) would have been obviated by a supplemental bill, leaving the injunction to be sus - tained, if it could by the original. 1 fear that the common idea, that an injunction is given up by an amendment, is carried too far; it is going sufficiently far to *328say, that an injunction cannot he sustained or propped by an amendment.
Per Curiam.
— Let the decree of the Court below be affirmed.