#### Kenon’s Executors v. Williamson, Morris et al.

An injunction against a judgment at law, liad been dissolved, and upon the coming out of the execution, the Defendants at law exhibited their hill, praying a reconsideration of the sentence of dissolution, and an injunction in the mean time, against the execution.— This injunction was granted by a Judge in vacation, and the bill was filed and an answer was pul in. This is not a bill of review, but the court .vill support it as a petition for a rehearing.

One. question in this case was, whether the proceeding upon which an injunction had been issued, was to be considered as a bill of review or not. The. I’lain tiffs at. law had obtained ^judgment upon the bond of the Defendants, for a large sum of money, conditioned to indemnify them against the creditors of the Company, of which, the tes-tato! had been a partner. The D fendauts had obtained an injunction against that judgment, and there had been a dissolution of the injunction as to part of the judgment, upon coming in of the answer, and a report made by the Master. In this report it was stated, that two debts, one in Virginia,the other in this State, not yet recovered by the creditors, were debts to which that Company were liable. As to them the injunction 'tas continued. At. a following term,the Plaintiffs at law producedt.be records ofrecove-ries iu these two suits, and moved for a further dissolution to the amount of those judgments, being about £1104. Upon the. motion, the court took time to advise, and after-*402wards dissolved the injunction as to the amount of these judgments. This dissolution took place in the vacation, to be entered as of the preceding term ; and afterwards in the samo vacation, upon coming out of the execution, ■the Defendants at law exhibited the bill in question, stating their non-liability to indemnify the Plaintiffs at law a- ■ gainst these debts by the terms of the contract — these being debts not contracted by that Company, but by the deceased as partner of a Company under another firm, of which Company, Williamson was also a partner — praying a reconsideration of the latter sentence of dissolution, and an injunction in the mean time, against the execution at Jaw. This injunction was granted as prayed for, by a Judge in vacation, and the bill filed and an answer put in. The counsel for the Plaintiffs at law now moved for a dissolution of the latter injunction, and that the hill «pon which it was granted might be now taken into consideration and disposed of. As.a bill'of review, he said, it was certainly improper and without precedent — a bill of review could not be granted without the leave of the court, and when granted, it did not operate as a suspension of the former decree. All parts of the former decree must be performed, except such as if performed would extinguish the right of the Plaintiff in the bill of review $ and it is a good plea in bar of the bill of review, that the former decree is not executed. 2 Eq. Ca. Mr. 175, sec. 8 & 10. And this point had been so decided upon consideration in a case at Fayetteville, April, 1795. There the wife of Mr. Spillar liad obtained a decreo for alimony J he obtained a bill of re,view, and moved to suspend any further execution of the decree, until the bill of review could be heard ; and the court refused to make any such order, though he strongly insisted, that a hill of review ought to operate' like a writ of error, which is a su-persedeas to the execution till the writ be determined.— Me insisted further, that a bill of review is not allowable in any case, where the original cause is not completely determined, and the decree signed and enrolled — for before that time, the party supposing himself injured by any interlocutory decree, or even after a final decree pronounced, may petition for a rehearing, and have the mistake, if any, rectified that way ; and upon a rehearing allowed, the court may order a suspension of proceedings upon the interlocutory order or decree complained, of, but *403{[iey af.e iH)fc stopped without sue)) special order. This, bill is every way improper, and being so, will be dismis sed, and the injunction upon it will of course fall with it.

E contra

it was argued, that no objection could lie to this bill, as a bill of review', except that of the former cause being not yet decided — as to which, the practice here, had not been precisely settled, and he wished the •opinion of (lie court upon it. It seemed upon principles to be extremely proper, where an interlocutory -decree had been hastily or improvidently made, injurious to either party, especially in a case where it was to be attended with a seizure aud sale of property, as in the present cusp, where the execution is to issue immediately for so large a sum, there should be some way of setting it right. He could not. see why an injunction to stop proceedings till a re-examination of the mistake complained of, took place, should not he as proper as any other mode. The practice under our present system cannot in all instances be regulated by the'same rules as adopted in the courts. There may be a petition of rehearing before the Chancellor at any time. He alone possesses all the power of the Chancery Judge — but here in vacation, each Judge separately does not possess the same power. One Judge cannot make the same order, upon a petition for rehearing, relative to the suspension of proceedings upon a decree or sentence, that the court may ; as one Judge cannoi make a decree, he cannot suspend it perhaps when made, simply by an order for that purpose: and it may be well doubted, whether one Judge, out of court, can grant a rehearing. it is very probable therefore, that the granting-an injunction in the present case, was the only measure •that could have been adopted in the vacation, to obviate the injury complained of, till the court were again assembled, and could examine into the mistake complained of, and either allow or disallow of the petition for the rehearing, and make the order for the suspension of proceedings on the former sentence. How otherwise can the execution at law be suspended in time of vacation ? It is a mistake to say, that bills of review cannot be granted before a complete compliance with the decree. The boobs will shew many instances where bills of review have been sustained before execution of the decree, and in some instances, without security given for the performance of it. Neither is it in all cases necessary to apply to the court *404for leave to file a bill of review. But it is immaterial by wliat name this instrument may be called — let it some other name than that of a bill of review — we know the object of it — it is to be relieved against the injustice resulting to the Defendants at law by the last dissolution. In whatever way we can arrive at a reconsideration of the sentence, we shall be satisfied.

Per curiam

A bill of review lies only upon a final decree enrolled. Before it is finally pronounced and recorded, any mistakes may be rectified by a rehearing granted upon a petition for that purpose, stating wherein the injustice is likely to happen. A bill of review is always granted by the permission of the court, given either in one form or another. If it be grounded upon new matter discovered since the hearing, that, is exhibited to the court by way of petition for a bill of review; and the allegations of the petition are supported'by affidavits — and upon these, the court decides whether it he proper to allow a bill of review. If it be grounded upon error apparent in the proceedings, then the bill is filed without any petition but the Defendant pleads the decree in bar, and demurs to the opening the enrolment of it — and then the court, before they can dispose of the demurrer, are necessarily obliged to look into the decree, and see whether there is any such error as makes it proper to overrule the demurrer. If there is no such error, they allow the de-. murrer; if otherwise, they overrule it, and open the en-rolment — here is the consent of the court before it can be laid open. When a bill of review is allowed, it docs not operate as a supersedeas to the decree, and nothing in the nature of a supersedeas should issue. This was so decided at Fayetteville, as the counsel has mentioned, in April, 1795, upon consideration. The bill of review must be grounded either upon new matter discovered since the hearing, which the party therefore could not use at the-time of hearing, and which in the judgment of the court would have caused a different decree from what is made, or for error apparent. In the present case, the.objection mow urged, might have been urged at the hearing.' The objection is, that tiiese debts are not the debts of the Company against which the Defendants at law were bound to indemnify the Plaintiffs at law; and for proof of this, they refer to a comparison of the bonds with the words of the agreement. What was to hinder them from urging *405this matter at the time when the latter dissolution took place? Why did they not long ago, except to that part of the report which states these bonds to be a part of the partnership debts not yet recovered by the creditors ?— That report was made up in their presence many terms ago — it was never excepted or objected against, till this bill was filed. This therefore is not. any new matter proper for a bill of review, even were the court now to decide upon the propriety of granting a bill of review.— The counsel however, is willing to consider it as a petition for a rehearing, and should it now be disallowed, that the injunction granted upon it shall stand dismissed. It must be in substance a petition for a rehearing, though it differs in form, and upon that groud we will hear it read, and decide upon it. It was then read, and the answer of the Defendants also, by consent ; and the court directed the injunction granted upon it to hr dissolved— the answer having stated precisely, that these were debts due by the Company, the Defendants at law were bound to indemnify.