Laws

Clark v Garrett, 6 Lea Post Date: Mon, 28 Jul 2008 10:17:31 +0000
Arnold v Moyers, I Lea (Tenn) 313; Ber- danatti v Sexton, 2 Tenn C H 699; Brown v Severson, 12 Heis K (Tenn) 381; LaGrange, etc, RCo v Rainey, 7 Cold W (Tenn) 420; McDowell v Morrell, 5 Lea (Tenn) 278; Living- ston e Noe, i Lea (Tenn) 62; Russell's Appeal, 34 Pa St 258; Kachlein's Appeal, 5 Pa St 95; Yeager's Appeal, 34 Pa St 173; Frey's Estate, 34 Le g Int. (Pa) 176; McCall v McCurdy, 69 Ala 65; Otis v Dargan, 53 Ala 178; Crooker v Houghton, 61 Me 337; Gilchrist v Buie, i Dev B E Q (N Car) 346; Moore v Moore, 2 Ve S 598; Green v Jenkins, i De g , F J It is not allowable to allege matters, by way of amendment to the original bill, which will have a tendency to create new issues: that is, the bill of review cannot operate as an amend- ment to the original bil L Snyder v Bodkin, 37 W Va 355 Everything will be presumed in favor of the rulings of the court in the original suit which the bill does not disprov e George v, George, 67 Ala 192 New Matter upon which a bill is founded must be so stated that the court may upon demurrer determine its character, and not be left to judge of its sufficiency upon consideration of the additional testimony in connec- tion with the evidence in the original caus e Greer -v Turner, 47 Ark 29, holding that if the new evidence is oral the names of the witnesses, and what each one will swear to, should be set out. Clark v Garrett, 6 Lea (Tenn) 262; Livingston v Noe, i Lea (Tenn) 55; Carter v Allan, 21 Gratt ( Va) 241 See Burson v Dosser, i Heis K (Tenn) 761, noticed by Chan- cellor Cooper in Long v Granberry, 2 Tenn C H 86 The bill for new matter ought to show how and when the plaintiff first came to a knowledge of the matters alleged, the means that were used (if any) to keep him in ignorance, and that he has not been guilty of negli- gence in failing to discover and pro- duce it at the former tria L Greer v Turner, 47 Ark 29; Myers v Pickett, 81 Tex 53; Traphagen v Voorhees,45 N J E Q 41; Berdanatti v Sexton, 2 Tenn C H 699 Multifariousnes S A bill of review for new matter and error apparent is not multifariou S Winchester v Win- chester, i Head (Tenn) 460; Colville 7'.

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7 Signature, etc A bill Post Date: Mon, 28 Jul 2008 10:04:10 +0000
Colville, 9 Humph (Tenn) 524 Frame of the Bil L BILLS OF REVIE W Frame of the Bil L and if the decree is impeached on the latter ground, it seems necessary to state in the bill the leave obtained to file it and the fact of the discovery, 1 though it has been doubted whether, after leave given to file the bill, that fact is traversibl e 2 The bill must show that the plaintiff's interests have been prejudiced, what those interests are, and that he will be benefited by a reversal or modification of the decre e 3 Prayer The bill may pray simply that the decree may be re- viewed and reversed in the point complained of, if it has not been carried into executio N 4 If it has been carried into execution, the bill may also pray the further decree of the court to put the party complaining of the former decree into the situation in which he would have been if that decree had not been execute d 5 If the bill is brought to review the reversal of a former decree, it may pray that the original decree may stan d 6 Eevivor and Supplement. The bill may also, if the original suit has become abated, be at the same time a bill of revivoRA supple- mental bill may likewise be added, if any event has happened which requires it ; and particularly, if any person not a party in the original suit becomes interested in the subject, he must be made a party to the bill of review by way of supplement. 7 Signature, etc A bill of review should be signed by counsel and otherwise conform in general to the requirements of an original bil L 8 XI I PEOCESS ON THE BIL L Process should be regularly issued and served, and the appearance of the defendant is enforced in A bill of review for new matter Defendant's IntereSt A bill of re- and an original bill to vacate the view which does not name and de- decree for fraud may be united, scribe defendants as having some in- Webster v Diamond, 36 Ark 532 terest in the subject-matter will be See also Boyden v Reed, 55 111 460 stricken from the files on motio N the same manner as to an original bil L 1 But if the defendant be beyond the jurisdiction of the court, an order may probably be obtained for the service of a subpoena upon his solicitor in the original suit.

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6 A demurrer alone would Post Date: Mon, 28 Jul 2008 9:49:02 +0000
2 XII I EFFECT OF FILING THE BIL L The filing of any kind of a bill of review does not, in and of itself, operate as a suspension of the decree or prevent the execution thereof 3 The party having the decree is allowed to proceed in all such cases unless specially and expressly restrained, which is never done but on the sum de- creed being brought into court or on good security being give N 4 XIv DEFENSES TO AND PROCEEDINGS ON THE BILL 1 For Error Apparent. It has been said that the constant defense to a bill of review for error apparent upon the decree is by plea of the de- cree 5 and demurrer against opening the enrolment. 6 A demurrer alone would, however, seem to be the proper defense ; for, if the decree is fairly stated in the bill, it cannot be necessary to plead it.

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On a bill of re- Post Date: Mon, 28 Jul 2008 9:36:54 +0000
7 1 Heermans v Montague ( Va, 1890), 20 S E Rep 902; Daniell C H Pr (6th A M e d) 1575, note3 2 Daniell C H Pr (2d A M e d) 502 et se Q; Beach Mo d E Q Pr, 177 3 Williams v Mellish, i Ver N 117, note; Burch v Scott, i Gill J (Md) 402, i Bland (Md) 112; Ashford v Patton, 79 Ala 319; Kenon v Will- iamson, i Hay W (N Car) 350 See Cochran v Rison, 20 Ala 463 4 Burch v Scott, i Gill J (Md) 402 5 Which in this country, in respect of bills of review, comprises the whole record of the former suit. See Iv, supr A 6 2 Daniell C H Pr (6th A M e d) 1583; Webb v Pell, 3 Paige ( N Y) 368; Axtell v Pulsifer (111, 1895), 39 N E Rep 618; Gould v Tancred, 2 At K 534; Dancer v Evett, i Ver N 392; Smith v Turner, i Ver N 274 See LaGrange, etc, RCo v Rainey, 7 Cold W (Tenn) 420 Plea of Enrolment. On a bill of re- view alleging that the decree was not enrolled, it will not do for the defend- ant to demur and insist in his plead- ing that the decree was enrolled, for then it would be a speaking demurreRHe should plead the decree as en- rolled and demur against opening it.

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" When the enrolment Post Date: Mon, 28 Jul 2008 9:21:55 +0000
Tallmadge v Lovett, 3 Ed W C H General DemurreRA general de- murrer will be overruled if there is in the bill any good ground for equita- ble relief, even if there are several grounds for special demurrer in the bil L Thompson v Maxwell, 16 Fla 773- Scope of DemurreRA formal de- murrer to a bill of review is like the plea of in nulla est erratum in a writ of error at la W Dance v McGregor, 5 Humph (Tenn) 428 When Answer Equivalent to DemurreRAn answer which admits that the pleadings and decree in the original cause are substantially stated in the bill of review, is equivalent to a de- murrer or to a plea of the former de- cree and a demurrer to the opening of the enrolment, and may be proceeded on as suc H Randall v Payne, i Tenn C H 452 See also Enochs v Harrel- son, 57 Mis S 465 7 2 Daniell C H Pr (6th A M e d) 1583; Enochs v Harrelson, 57 Mis S 465; Carey -v Giles, 10 Ga 9 See also Webb v Pell, 3 Paige ( N Y) 368 Argument of DemurreRIf the de- fendant demurs only and does not plead to the bill of review, the court is confined to the bill of review itself, and must determine whether there is error apparent upon the face of the record as it is set forth in the bill of revie W LaGrange, etc, RCo v Rainey, 7 Cold W (Tenn) 420 Admissions by a DemurreRA de- murrer admits the representative character of the plaintiff as alleged in the bil L Edmonson v Marshall, 6 J J Marsh (Ky) 449 But in Riggs v Huffman, 33 W Va 426, it was held that a general d- If the demurrer is sustained, the original decree is thereby af- firmed and the bill of review will be dismisse d 1 If the demurrer is overruled, the decree may be reversed or modified without any further answer or hearin g 2 The rule in such case is that the decree can be varied only upon such errors as are complained of, except as to consequential directions, which will be altered so far as the justice of the case may requir e 3 It has been stated that length of time should be pleaded to a murrer does not admit the sufficiency of interest of the plaintiff The truth of matters of fact is not admitted by a demurrer if they are in- consistent with the decre e Shelton v Van Kleeck, 106 U S 532 Defenses Proper for Pie*. If there be any matter beyond the decree avail- able as a defense, that matter should be pleade d Hartwell v Townsend, 2 Br O p C 107; Enochs v Harrelson, 57 Mis S 465; Livingston v Noe, i Lea (Tenn) 66 See also Edtnonson v Mar- shall, 6 J J Marsh (Ky) 449 1 Webb v Pell, 3 Paige ( N Y) 368 A bill of review, for error apparent, containing a statement of the evidence is open to special demurreRSee Iv, supr A Amendment after Demurrr Sustaine d The court, in its discretion, may allow an amendment to a bill of review after a demurrer to it is sustaine d Forman v Stickney, 77 111 575 Allowance of Demurrer as Res Adjudi- cat A If a demurrer to a bill of review is allowed, the order allowing it is an effectual bar to another bill of review on the same grounds, and may be pleaded accordingl Y Dunny v Fil- more, 2 C H Ca S 133; S S, su b no M, Dunny v Filmore, i Ver N 135; Pitt v Arglass, i Ver N 441; Woots v Tuck- er, 2 Ver N 120; Webb v Pell, 3 Paige ( N Y) 368; Respass v McClanahan, Har d (Ky) 350 2 Cook v Bamfield, 3 SwanSt 607; Guerry z/ Ferryman, 12 Ga 14; Goolsby v St John, 25 Gratt ( Va) 163 Proceeding upon Opening Enrolment. " When the enrolment is opened for error apparent, that decree should be made which should have been made at first, for the court, having full con- trol of the cause as if it had never been heard before, should make the proper disposition of it.

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XV I EFFECT Post Date: Mon, 28 Jul 2008 9:09:20 +0000
If the error apparent goes to the right of the com- plainant to maintain his bill, it is prop- er to proceed at once, without a rehear- ing, to reform the decre e Carey v Giles, 10 Ga 9 But where this is not the case, and a rehearing is asked for, it should be allowed, if sufficient reason is shown therefoRLord Hardwicke said: ' After the demurrer [to a bill of reviewforerror apparent] is overruled, the plaintiffs are at liberty to read bill or answer, or any other evidence, as at a rehearing, the cause being now equally ope N' Catterall v Purchase, i At K 290" Enochs v Harrelson, 57 Mis S 465 See Kenner v Smith, 8 Yerg (Tenn) 206; McCall v McCur- dy, 69 Ala 65; Handy v Cobb, 44 Mis S 699; Hogan v Davis, 3 Ala 70 Leave to Amen d Upon sustaining a bill of review by the defendant in the original bill, the complainant may be permitted to amend his bill and the cause allowed to proceed on the bill as amende d Prentiss v Paisley, 25 Fla 927 New Defens e After a decree has been set aside for error apparent upon bill by the defendant, upon proper proceeding he may rely, as a defense to a personal decree against him, upon a discharge in bankruptcy obtained after the filing of his answer in the original cause and before the rendition of the decree reviewe d Payne v Beech, 2 Tenn C H 708 3 Moore v Moore, 2 Ve S 598 Setting Aside Sale on Executio N Where land has been sold under an execution issued on a decree, the court, on reversing the decree on bill of re- view, may set aside such sale as a cloud on the title, if the bill is framed so as to justify such relief Forman v Stickney, 77 111 575 See also U S Bank v Ritchie, 8 Pet (U S) 128 Enjoining Executio N Where there appears to be good cause for reversing the decree, the enforcement of the decree by levy and sale will be en- joined until the hearing on the revie W Bennett v Brown, 56 Ga 2:6, where the injunction was prayed for in the bill of revie W bill of review, and that otherwise the plaintiff could not have the benefit of exceptions, as infancy, coverture, or the like; 1 but it would seem that if the plaintiff relies on any such exceptions he ought to state them in his bil L If he does not do so this defense can be offered by demurreR2 2 For New MatTer Where a bill of review is grounded upon new matter, the defendant, if he think such new matter not relevant, may take the objection by way of demurreR3 If the demurrer is overruled, the defendant must answer ; 4 but if it is allowed, the bill is dismissed, and another bill cannot be brought on the same ground S 5 After the demurrer is overruled the plaintiff is at liberty to read bill or answer or any other evidence, as at a rehearin g 6 The bill is liable to any plea which would have avoided the effect of that matter if stated in the original bill ; 7 and the allega- tions concerning the discovery of the new facts may be traversed by answer and evidence like any other fact stated in the bil L 8 Xv RESTITUTION UPON SUSTAINING BILL OF REVIE W Upon sus- taining a bill of review and reversing the former decree, the court will order restitution of money paid under the decre e 9 1 Gregor v Molesworth, 2Ve S 109 2 Sherrington v Smith, 2 Br O p C 62; Gorman v McCulloch, 5 Br O P C 597; 2 Daniell C H Pr (6th A M e d) 1583 3 2 Daniell C H Pr (6th A M e d) 1583; Lorentz v Lorentz, 38 W Va 556; Long z/Granberry, 2 Tenn C H85 Admission by a DemurreRUpon de- murrer, the facts stated are to be taken as true, except in so far as they differ from exhibits referred to, unless the exhibits be impeache d Bush v Madeira, 14B Mo N (Ky) 212 4 Cook v Bamfield, 3 SwanSt 607 5 Daniell C H Pr (6th A M e d) 6 Catterall v Purchase, i At K 290 Upon opening the enrolment the original cause and the bill are heard togetheRPayne v Beech, 2 Tenn C H 708; McCall v McCurdy, 69 Ala Jury Tria L Trial by jury upon a bill of review is discretionary with the court. Elliott v Balcom, n Gray, (Mas S) 286 7 2 Daniell C H Pr (6th A M e d) 8 2 Daniell C H Pr (6th A M e d) 1584; Dexter v Arnold, 5 Mason ( U S) 303; U S v Semperyac, HempSt (U S) 118; Barnett v Smith, 5 Call ( Va) 98 Compare Hodges v Mulli- kin, i Bland (Md) 503 Matter Improper for AnsweRAn an- swer cannot go behind the decree at- tacked to put again in issue matters which were in issue before the decre e Saunders v Gregory, 3 Heis K (Tenn) 567 Nor can the defendant to the bill of review state new grounds and demands not stated or appearing in the original caus e Thornton v Stew- art, 7 Leigh ( Va) 128 See also John- son -v Chandler, 15B Mo N (Ky) 584- Objection by Ple A The fact that the new matter was known in time to be used, or that reasonable diligence was wanting, may be set up by ple A Jenkins v Prewitt, 5 Blackf (Ind) 7 See also Lewellen v Mackworth, 2 At K 40, 2 Daniell C H Pr (6th A M e d) 1584 9 Ambler v Macon, 4 Call ( Va) 605; Nelson v Suddarth, i He N M ( Va) 350, where money paid and an obligation given for a further pay- ment were ordered to be surrendere d In Miller v Clark, 52 Fed Rep 900, it was said that " in the cases of resti- tution which have been cited there appears to have always been an erro- neous judgment for a substantial sum," and the Circuit Court, upon sustaining a bill of review, declined to order a restitution of costs paid under a mandate of the Supreme Court. XV I EFFECT OF REVERSAL ON PURCHASERThere is some con- flict of opinion as to whether a person who purchases property from a successful party to a suit, after final decree therein and within the time limited by law for filing a bill of review, is a purchaser pendente lite and bound by a decree of reversal on a bill of review subsequently file d 1 But there is no doubt that where a purchaser acquires his title after the lapse of the period within which an appeal can be prosecuted from the decree, such title cannot be prejudiced or in any manner affected by a decree rendered on a bill of review filed thereafTer 2 XVI I COST S Although costs in equity are usually taxed in favor of the prevailing party, the court may, in its discretion, upon sustaining a bill of review deny costs to the plaintiff therei N 3 XVII I BILLS IN NATURE OF BILLS OF REVIEW!.

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Such a supplemental bill cannot Post Date: Mon, 28 Jul 2008 8:54:39 +0000
Nature and Us e A bill of review strictly so called can be filed only where the de- cree sought to be reviewed has been signed and enrolle d 4 But if a party discovers any error or new matter of fact after the de- cree has been pronounced, and before it has been enrolled, he may obtain relief by a bill in the nature of a bill of revie W 5 1 This question was answered in the affirmative in Earl v Couch, 3 Mete (Ky)45o; in Clarey v Marshall, 4 Dana (Ky) 96; and in Cook v French, 96 Mich 525 On the other hand, a different conclusion was reached in a very well-considered case in Ohio Ludlow v Kidd, 3 Ohio 541 The 1 decision in Lee County v Rogers, 7 Wal L (U S) 181, has also a direct bearing on the question, and is in harmony with the case decided in Ohio And in Rector v Fitzgerald, 59 Fed Rep 808, the opinion was ex- pressed that one who purchases after the lapse of the term at which a final decree on the merits is rendered, with- out notice that a bill of review is in contemplation or may be exhibited, should be protected from the effect of a decree on such a bill if it is subse- quently file d 2 Rector v Fitzgerald, 59 Fed Rep 808 3 Miller v Clark, 52 Fed Rep 900 Cost S Costs are properly imposed upon a subsequent incumbrancer who defends against a bill of review filed by a principal defendant, and main- tains the supplementary litigation in opposition to the terms of a mortgage binding his land S Mickle v Max- field, 42 Mich 304 4 See I, supr A 5 Story E Q PL, 421; Burch v Scott, i Gill J (Md) 400 It is doubtful if a bill in the nature of a bill of review can be filed upon matter of law, as a mistake in law is a ground for a rehearin g Perry v Phelips, 17 Ve S JR177 " 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 Unio N 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 passe d So that the appropriate remedy is by a bill of revie W" Per Story, J, in Dex- ter v Arnold, 5 Mason (U S) 310 See also Baker v Whiting, i Story (U S) 218 In Maryland a bill in the nature of a bill of review is not use d Burch v Scott, i Gill J (Md) 400 Nor in Florida Owens v Forbes, 9 Fla 325 For instances where bills in the nature of bills of review have been discussed, see Quick v Lilly, 3 N J E Q 255; Hyman v Smith, 10 W Va 298; Carper v Hawkins, 8 W Va 301; Sturm v Fleming, 22 W Va 404; Shenandoah Valley Nat Bank v Shirley, 26 W Va 569; Sanford v Haines, 71 Mich 116; Peak v Perci- full, 3 Bush (Ky) 218; Burch v Scott, i Gill J (Md) 400 Where there is no defect to be supplied the new investigation of the decree must be, or at least usually is, brought on by a petition for a rehearing, 1 and the true office of the bill is to bring new matter of fact before the court. 2 Supplemental Bil L In such a case the new matter is brought for- ward by a supplemental bill, or a new bill in the nature of a bill of review, and it ought to be accompanied by a petition to rehear the original cause at the same time that it is heard upon the supplemental bil L 3 If necessary a bill of review may also be incorporated into such a supplemental bil L 4 And where a dif- ferent kind of relief is sought, or a different principle from tha't on which the original decree is given, it must be sought by a sup- plemental bill in the nature of a bill of revie W 5 Leave of Court. Such a supplemental bill cannot be filed without the leave of the court, nor without an affidavit similar to that required in the like case of a bill of revie W 6 Security for Cost S The plaintiff must, in like manner, make a deposit as security for cost S 7 2 Supplemental Bill, etc, without Leav e If a decree has been made against a person who had no interest at all in the matter in dispute, or who had not such an interest as was sufficient to render the decree against him binding upon some person claiming the same or similar interest, relief may be obtained against the error in the decree by a supplemental bill in the nature of a bill of revie W 8 A bill of this nature, as it does not seek to alter a decree made against the plaintiff himself, or against any person under whom he claims, may be filed without first obtaining leave of the court.

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Story E Q JuR(2d Post Date: Mon, 28 Jul 2008 8:42:30 +0000
9 3 Partie S In a bill in the nature of a bill of review it has been held that those only are necessary parties, as complainants or defendants, who have an actual interest, and that parties to the original suit who have no interest in the subsequent bill need not be joine d 10 4 Frame of Bil L A supplemental bill in the nature of a bill of review closely resembles in its frame a bill of revie W 11 10 Maxwell Land Grant, etc, Co v state them in the alternative, praying Thompson, I N Mex 603 one sort of relief, as upon a bill of re- 11 Story E Q PL, 425 view if the decree had been enrolled, Instead of praying that the former and if not enrolled, then to have the decree may be reviewed or reversed, benefit of it, as upon a supplement A it prays that the cause may be heard bill in the nature of a bill of review, with respect to the new matter made Story E Q PL, 425 I DEFINITIO N Bill Quia Timet (because he fears) is the name given to a bill in equity, filed by a person fearing some future injury to his rights in property, real or personal, from the negligence, fault, or fraud of anotheR1 I I WHEN MAINTAINABL e The theory upon which these bills are based is the probability of irretrievable injury, the insufficiency of pecuniary satisfaction, and the inexpediency of ceaseless liti- 1 i Ma d C H Pr 218; Blake C H Pr 37, 47; 2 Story E Q Ju R, 327, 639, 825, 849, 851; Stephenson v Taver- ners, 9 Gratt ( Va) 398; McDougald v Dougherty, n Ga 570; Jones v Perkins, 8 Tex 337; Drury v Roberts, 2 Md C H 157; Whitridge v Durkee, 2 Md C H 442; Champlin v Champlin, 4 Ed W C H ( N Y) 228 Histor Y The name of these bills was probably borrowed from the title of some ancient writs at common la W Willard E Q JuR328 Coke calls them brevia anticipantia (writs of preven- tion), and explains them as follows: "And note that there be six writs in law that may be maintained quia timet before any molestation, distress, or impleading, as (i) a man may have a writ of mesne (whereof Littleton here speaks), before he be distrained; (2) a ivarrantia charta, before he be impleaded: (3) a monstraverunt, before any distress or vexation; (4) an audita querela, before any execution sued; (5) a curia claudenda, before any de- fault of inclosure; and (6) a ne injuste vexes, before any distress or molesta- tio N" Co Litt 100, a; 7 Br O p C 125 (Tom L e d). Modern Practic e These remedies are now antiquated, and few traces of their former existence are to be foun d But the same relief is afforded in modern times by courts of equity through the medium of the bill quia ti Met i Fou b E QB, C I, ^ 2, not e Audita Quere La The writ of audita querela was abolished in England by Or d 42, 22, of the Judicature Act, but by the same section it was pro- vided that any party against whom judgment has been given may apply to the court for a stay of execution, or other relief against such judgment, on the ground that facts have arisen too late to be pleaded; and such relief may be given as to the court shall seem fit. Story E Q JuR(2d Eng e d), note to 825 See article AUDITA QUERELA, Vo L II I, p 113 gatio N The purpose of such a bill is invariably to insure the application of property to its intended use, when there is danger of its being diverted elsewhere ; to clear away harassing doubts which beset a clouded title ; to nullify the possible future effects of frauds which have been perpetrated, and to prevent the pos- sibility of future damag e 1 In this work the various kinds of bills quia timet and the purposes for which they will lie are treated specifically and in detail under the following titles, to which the reader is referred : BILLS DE BENE ESSE; BILLS OF PEACE; INDEMNITY; INTERPLEADER; LIFE TENANTS AND REMAINDERMEN; PERPETUATION OF TES- TIMONY; PRINCIPAL AND SURETY; QUIETING TITLE REMOVAL OF CLOUD; RESCISSION AND CANCELLATION; TRUSTS AND TRUSTEES ; WILL S 1 Natur e As will be readily un- derstood from the nature of the relief sought in many cases, the quia timet jurisdiction of the court is closely bound up with the subjects of Injunc- tion, Specific Performance, and many other important heads of equity juris- prudenc e The main point must, how- ever, be borne in mind that bills quia timet look, not to the past or present, but to the futur e They do not so much restore violated rights as they insure against possible future in- fringement.

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(Pa) 490 A bill quia Post Date: Mon, 28 Jul 2008 8:27:38 +0000
And it is in the exercise of this function that they employ the various remedies of cancellation, ref- ormation, etc Their office is to pre- serve and fortif Y Ranelaugh v Hayes, I Ver N 189; Story E Q JuR, 850; Rawle on Cov for Title, 652; Lloyd v Dimmack, L R, 7 C H 401; Hemming v Maddick, L R, 7 C H d 395; Green v Hankinson, I Mis S 487 Facts to be Show N There are at least two necessary ingredients for a quia timet actio N There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantia L It may be said there must be proof that it will be irreparable, because, if the danger is not proved to be so imminent that undoubtedly, if the remedy is delayed, the damage will be' suffered, it must be shown that if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossi- ble for the plaintiff to protect himself against it if relief is denied him in a quia timet actio N Fletcher v Bealey, 28 C H d 688 ; Bailey v Briggs, 56 N Y 407 Jurisdictio N When property is of an equitable nature, the jurisdiction is equally applicable to cases where there is a present right of enjoyment, and to cases where the right of enjoy- ment is future and contingent. Wil- lard E Q JuR328 Statutory Remedie S These bills will not lie where a statutory remedy is provide d Buchanan z Noel, 35 Le g Int. (Pa) 490 A bill quia timet, to have rights de- clared and an act of legislature con- strued and pronounced unconstitu- tional, cannot be sustained in advance of the occurrence of a state of facts creating a real controvers Y Black v Fleece, 2 Lea (Tenn) 566 See also Thomas v White, 2 Ohio St 540; Polk v Rose, 25 Md 153; Mankato v Willard, 13 Min N 13; Marmaduke v Hannibal, etc, RCo, 30 Mo 545; Wagner v Law, 3 Wash 500; Ran- dolph v Kinney, 3 Ran d ( Va) 394; Orton v Smith, 18 How (U S) 263; Sanderson v Jones, 6 Fla 430; Tip- ping v Eckersley, 2 K J 264; Ritchie v Dorland, 6Cal33 Federal Court S Federal courts in equity have cognizance of bills quia timet, although complainant is not in possession, if the local legislature gives the remedies in such case, unless defendant would be entitled to a jury trial, according to the course of com- mon la W Grand Rapids I RCo v Sparrow, 36 Fed Rep 210 I DEFINITIO N A bill to execute a decree is a bill assuming as its basis the principle of an existing decree, and seeking merely to carry it into effe Ct 1 I I EQUITY JURISDICTIO N A court of equity has power to en- tertain a bill to carry into effect a decree of the same or of a dif- ferent court.

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O'Hara v Shepherd, 3 Md Post Date: Mon, 28 Jul 2008 8:12:57 +0000
2 II I NATURE OF BIL L This is termed a bill to carry a decree into executio N It is not strictly an original bill, since it is at 1 " For example, such a bill may be same or of a different court, as the Sled where an omission has been made exigencies of the case or the interests in consequence of all the facts not of the parties may requir e" 2 Shields v Thomas, 18 How ( U into effect all the powers given them S) 262, where Daniel, J, said: by law; and it is manifest from the " Amongst the original and undoubted case stated in the bill, that unless the powers of a court of equity is that of bill be sustained, the former decree entertaining a bill filed for enforcing cannot be executed, and the plaintiffs and carrying into effect a decree of the will be remediles S" least occasioned by a former bill, and assumes as its basis the principle of the decree sought to be execute d 1 But it is said to be, generally, partly an original bill and partly a bill in the nature of an original bill, 2 and it is sometimes also a bill of revivor or a supplemental bill, or both, the frame of the bill being varied ac- cordingl Y 3 Iv WHEN MAINTAINABLE 1 Generall Y Its use is proper when it happens that a decree which has been pronounced cannot be carried into execution by any ordinary process of the court pro- nouncing it. Such a case usually arises where, on account of some neglect of the parties to proceed upon the decree, or from some other cause, their rights have become so embarrassed by subsequent events that it becomes necessary to have another de- cree of the court to ascertain and enforce the M 4 1 Adams E Q 415; Mitf E Q P I 97; Grew v Breed, 12 Met (Mas S) 2 Mitf E Q P I 117 In the case of Pott v Gallini, i Si M St U 206, the bill seems to have had all of the qualities of an original bil L 3 Coo P E Q P I 109; Story E Q PL, 432; Beach Mo d E Q Pr , 903; Herd v Bewley, i Heis K (Tenn) 524 A Supplemental Bill may be filed either before or after a decree; if afterwards, it may be either in aid of the decree, that it may be carried into full execution, or that proper direc- tions maybe given upon some matter omitted in the original bill, or not put in issue by it or by the defense made to it. O'Hara v Shepherd, 3 Md C H 306; Story E Q P I, 338 See also Hodson v Ball, I P H 181 Where the rights of parties to a suit which have their origin in a bill for an interpleader have been determined by a final decree, the determination of the court may be subsequently en- forced by the institution of a new pro- ceeding growing out of the original suit; and this cannot be prevented by the enrolment of the decree in the original suit.

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