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Webb v. Pell

1 Paige Ch. 564 Court N.Y. Ch. Decision date 1829-08-04 English

Contents

Majority

p. 564
Webb and others v. Pell and others.
August 4th.

Headnote

It is not necessary to obtain leave to file a bill of review, where it is brought to correct errors apparent on the face of the record.
Alitor, where it is brought upon the discovery of a new matter.
Where a subpoena was taken out upon a bill of review, and a bona fide attempt made to serve it within five years from the entry of the original decree, it was held to be a sufficient commencement of the suit, although the subpoena was not in fact served within the time allowed by law for appealing from the decree.
On filing a bill of review, a deposit must be made with the register of the same amount which is required on an appeal
Where the solicitor for the complainant acted under a mistake as to the practice, he was allowed after the commencement of the suit to make the deposit nunc pro tune.
The object of this bill was to review a decree of this court for errors alleged to be apparent on the face of the record. It was filed without leave of the court, and without making any deposit. Within the time allowed by law
p. 565
for appealing from a decree, a subpoena was taken out, and a bona fide attempt made to serve it. But it was not in fact served until after the expiration of the five years. A motion was now made on the part of the defendant to dismiss the bill for irregularity.
J. Radcliff for complainants.
D. B. Talmadge for defendants.

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.[1] 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.

(a) (a) 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]

Footnotes

  1. [1] [1] See sec. 334, N. Y. Code.