Armstead v. Bailey

Lewis, P., after stating the case, delivered the opinion of the court. The rule governing applications to rehear decrees in chancery upon matter of fact, is that the bill of review or the petition for rehearing, as the case may be, must set forth the discovery of new evidence, and must be supported by affidavit that such after discovered evidence could not have been brought forward, by the use of reasonable diligence, before the decree was made. Nor is it sufficient to allege merely that the party applying expects to prove cer [245] tain facts; but the newly-discovered evidence must be substantially and distinctly stated, in order that the court may judge of its relevancy and materiality, and it must not be merely cumulative, but such as would have probably produced, a different result, had it been offered in time. Carter v. Allan, 21 Gratt. 241; Whitten v. Saunders, 75 Va. 563; Trevelyan’s Adm’r v. Lofft, ante, p. 141. Tried by this test, the petition in the present case is defective. It does not allege the discovery of new matter, nor is it sworn to or supported by affidavit; and for aught it alleges to the contrary, the facts relied on. might have •been used when the decrees sought to be reheard were made. And if the facts alleged were known to, and might have been used by, the assignor of the appellant before the entry of those decrees, he must be presumed to have acquiesced in the decrees, and is not entitled to have them reheard; and the appellant, by virtue of the assignment subsequently made to him, can occupy no better position than his assignor. If the rule were otherwise, there would be no end of suits. Livingston v. Hubbs, 3 Johns. Ch. 124. A bill of review, it is said, does not lie for assignees. 2 Dan. Ch. Pr. 1627; Thompson v. Maxwell, 95 U. S. 391. And the same rule, says Barton, applies to a petition for rehearing. But it is nevertheless competent, says the same author, to a person not a party to the former suit, but whose interest may in some way have been affected by the proceedings had therein, to come in by petition to be made a party, and then to ask a rehearing of a former decree. 1 Bart. Ch. Pr. 205. For the reasons, however, already stated, the decree of the circuit court sustaining the demurrer to the petition is right, and must be affirmed. Decree affirmed.