is not only making a gallant fight for his wife's wretched brother, but he has conducted his case most judiciously, fairly and shrewdly. Personally, he has the sympathy of a profession who love fair play; and whatever the result, this trial, if he goes on as he has begun, will bring him honor and patronage.

IN

NOTES OF CASES.

'N Bon v. Railway Passenger Assurance Co., Iowa Supreme Court, Oct. 20, 1881, 10 N. W. Rep. 225, plaintiff having an accidental insurance ticket or policy, containing a provision that the "insurance shall only extend to bodily injuries, fatal or non-fatal, as aforesaid, when accidentally received by the insured while actually riding on a public conveyance provided by common carriers for the transportation of passengers in the United States or dominion of Canada, and in compliance with all rules and regulations of such carriers, and not neglecting to use due diligence for self-protection," was riding upon a train of cars, and as the same approached the station, and while it was slowing up, went out on to the platform. While standing there, owing to a sudden jerk of the train another passenger was precipitated against him, and he was by reason thereof thrown from the car and severely in

jured. It was a regulation of the railroad company that passengers should not stand on the platform, and plaintiff was aware of such rule. Held, in an action upon such accident policy, that upon such state of facts verdict should have been ordered for

the defendant. The court said: "Conceding the foregoing statement of facts to be true, was there such a failure of proof, from the plaintiff's own showing, as to require the court to direct the jury to return a verdict for the defendant? It will be observed that the rule of the company forbids passengers from standing on the platform. In its literal sense this would require them not to stand there whether the train was at rest or in motion, and it seems to us to be a reasonable requirement at all times. The platform of a car is a narrow passage for ingress and egress, and if crowded, even while standing at a station, it is an annoyance and inconvenience to those desiring to enter or leave the car. But in this case the train was in motion when the plaintiff went upon the platform. It is true, the rule must receive a reasonable construction; and even while the train is in motion persons may rightfully pass from one car to another for proper purposes, such as going to and from a dining, smoking, or sleeping-car, and the like. They are invited to do so by the agents and servants of the company, and by the manner in which trains are made up. But in so doing there would be no violation of the rule. The passenger, in such cases, does not stand upon the platform. The plaintiff's case is wholly different. He went upon the platform while the train was in motion, and some time before it arrived at the regular stopping place. He stood with his feet upon the steps, which must be regarded as part

of the platform, and holding the railing by his hands he awaited, either the slowing up of the train, or its arrival at the passenger platform, that he might alight. While in this position he received his injury. We think, by his own statement, that the accident happened while he was in plain violation of the rule under consideration, and because of such violation. It is urged that it is usual for travellers to go upon the platform of cars and get off before the train comes to a dead stop. Let this be admitted. Passengers also take fearful risks in boarding trains in motion, but we have yet to find any adjudged case where a passenger was allowed to recover damages by reason of personal injuries received in voluntarily and without cause alighting from or boarding an ordinary railroad train propelled by steam, and while in motion, unless it may be by the direction of the conductor or some one in authority. In such case the passenger must be held to take the risk upon himself and make the peril his own. Under our statute he is guilty of a misdemeanor. * * * It is said, however, that the plaintiff did not alight from the train while in mo

tion, but that by the sudden starting up of the train, he was jostled off by the passenger who stood behind him upon the platform. There is no claim that the engineer of the train knew that the plaintiff was in a perilous position, and after such knowl

edge, was guilty of negligence in suddenly increasThe plaintiff, whether ing the speed of the train. he intended to alight from the train while in motion or not, by standing on the steps of the platform, without any excuse or reasonable cause therefor, did an act which he knew was in plain violation of a rule of the company, and thereby forfeited any right of recovery on the contract of insurance, as expressed in the very terms of the policy." On the subject of boarding and leaving railway trains in motion, see 23 Alb. L. Jour. 124. On the subject of standing and riding on platforms of street cars, see Thirteenth and Fifteenth St. Pass. Ry. Co. v. Boudron, 92 Penn. St. 475; S. C. to appear in 37 Am. Rep., with note; also, Germantown Pass. Ry. Co. v. Walling, Penn. S. C., Jan., 1881; 23 Alb. Law Jour. 371.

The three next cases following are from the Vienna Juristische Blaetter: "A. had levied an execution against B. upon certain household goods. Thereupon C., the housekeeper of B., brought suit to recover the goods, claiming them to be her own by virtue of a contract of sale made between her and B. a long time before the levy of the execution. By paragraph one of this contract, B. sold to C. all the household goods in her house. Paragraph two recited the payment of the purchase-price by C. Paragraph three read: 'The purchaser from this day enters into the right of ownership of the abovementioned articles, and consequently she has the right to take possession of the same (literally 'to take the same to herself ') at any time, or to transfer the same.' The trial court decided in favor of the plaintiff, upon proof of the identity of the goods,

for these reasons: 'The defendant does not deny the execution of the contract of sale. By virtue of this contract, the plaintiff has acquired the ownership of the goods, as she, as housekeeper of the vendor, B., always had these articles under her control; a separate corporeal delivery was therefore unnecessary, and it is immaterial to inquire whether a further use by the vendor was intended. The defendant asserts that the contract was a mere sham, and in fraud of creditors, but he could not prove this.' The Supreme Court reversed the judgment on these grounds: Though we may assume the contract of sale to be valid, still the goods cannot be recognized as the property of plaintiff, for want of the requisite delivery. The plaintiff, indeed, asserts that at the time of making the contract she lived with the vendor, and the articles were under her control, and that therefore a corporeal delivery was unnecessary, and that the vendor handed to her the bill of sale, in which the articles were enumerated; that further, she was requested by the vendor to loan her the articles sold, and that she (plaintiff) agreed thereto, all of which constituted a delivery. But this did not effect a legal delivery of the articles, the same remaining after the sale in the possession (or keeping) of the vendor, the bill of sale not containing a declaration that the vendor delivered the goods to the vendee, and a declaration by the vendor that she was having possession of the goods in future in the name of the vendee, neither having been asserted nor proven. Consequently there was no delivery as required by law, and the plaintiff must fail in her suit.' On appeal of the plaintiff the Imperial Supreme Court affirmed the decision of the Supreme Court, giving the following reasons: "The contract of sale not only contains no declaration that the goods sold have been delivered to the vendee, but from the provision in paragraph three, that plaintiff should have the right to take possession of those articles at any time, it clearly appears that the same were not delivered to her nor under her control in any way, which latter does not arise from the mere fact that plaintiff was living with

the vendor of those articles. Neither do the other facts asserted by plaintiff show a delivery to her of the articles sold, and the acquisition of the object of the purchase not ensuing till such delivery takes place, the judgment of the Supreme Court appears justified.'"

"A. claimed a share in the estate of B., asserting that he was her illegitimate son. He was a foundling; B. had acted as god-mother (sponsor) at his baptism, and had afterward taken charge of his maintenance and education. She had said to sevcral persons, not in his presence however, and all being strangers to the family, that she was his mother; to others she had said that he was her son and she would provide for him. The Imperial Supreme Court of Cassation held the proof insufficient. It considered the terms 'mother' and 'son' equivocal under the circumstances, and said of the effect of admissions generally: 'Admissions out of

court have the power of proof only when they were made in the presence of one of whom the person making them knew that he had an interest in learning the truth, which clearly presupposes that the private interests of the person to whom such an admission is made should be concerned in the matter, and that rights should accrue to him out of the same.""

"From the forests of the manor M. timber had

been carried away by a flood, which in part was carried to the farm of Francis Sp., and in part caught by him. He refused to give it up to the employees of the manor who were sent to search for it and hauled it into his yard. In consideration that Francis Sp. knew the owner of the timber which was marked with the mark of the manor, that he knew that the owner was searching for the timber carried away, consequently had not given up his ownership (or possession), that Francis Sp. was led by the intention to appropriate the timber without pay, the trial court found him guilty of theft. On appeal it was argued that the possession of the timber was lost by the manor M. in consequence of the flood, that therefore for the want of a taking out of the possession of another theft was not made out. The Imperial Supreme Court of Cassation affirmed the conviction, saying: 'The defendant knowing the owner of the timber, and that he was searching for the timber, the party injured was in possession within the meaning of the law. Such possession or control of a thing means the possibility to actually dispose of the thing, coupled with the will to maintain this possibility.

As long therefore as a person does not give up the control (or keeping) of a thing himself, it is extinguished only when the actual presumption for the dominion of his will ceases, be it (a) that a physical impossibility to control the thing occurred, because the thing was destroyed, or because the former owner cannot get to the place where the thing is; or be it (b) that the will of another possessor stepped between the former owner and the thing, which can only be removed by selfaid or by legal proceedings. It is apparent that the first case supposed does not exist here, and that the second was produced by the defendant himself. The owner, who was searching for his timber, certainly did not want to give up his control; in the course of his search he would have got to the timber; the defendant, knowing the owner and the search, could not consider the timber lost property. He withdrew it from the owner, and the law has been applied correctly in finding him guilty of

is not constructive notice of a judgment against "Helen Desney." Judge Seever's opinion is both instructive and entertaining. He says: "The defendant insists that 'Helen' and 'Ellen' are the same. The rule is said to be: 'If two names are taken promiscously to be the same name in common use, though they differ in sound, there is no variance; where two names are derived from the same source, or where one is an abbreviation or corruption | of the other, but both are taken by common use to be the same, though differing in sound, the use of one for the other is not a misnomer.' Trimble v.

State, 4 Blackf. 437; 4 Bac. Abr. 'Misnomer;' 7 Am. Com. Law, 51, are cited in support of the foregoing proposition. Its correctness will be conceded. The first proposition is, if the names are commonly used as the same, though they differ in sound, if either is used it is not a misnomer; as Elizabeth, Betty, and Bessie, or Sarah, Sara, and Sally. This may be admitted, but 'Helen' and 'Ellen have not been commonly used as the same. There is no evidence so tending, and Mrs. Desney was not known by the name of 'Ellen,' nor did she at any time so write her name. We think the names have been known and generally recognized as different and distinct. The last proposition is, where one is an abbreviation or corruption of the other, but both are taken by common use to be the same, though differing in sound, the use of either is not a misnomer. But Helen' is not, in our opinion, an abbreviation or corruption of 'Ellen,' nor is the latter an abbreviation of the former, nor are they commonly or indiscriminately used as the same, to our knowledge, and certainly the evidence does not so show. The second proposition is, if the names are derived from the same source, the use of one for the other is not a misnomer, and it is insisted this is so as to the names in question; the argument being that 'Helen' and 'Ellen' are both derived from the Greek, and the difference in spelling in English doubtless results from the difference between the two Greek letters epsilon and eta. ‘Ellena,' if the Greek letter eta was used in commencing the word, would be pronounced 'Hellena;' the letter eta embracing the aspirate h when pronounced. Thus the Greeks are denominated among the classics Ellenes or Hellenes indifferently, both meaning the same thing. Donnegan's Greek Lexicon, 473; Webster's Unabridged Dictionary, tit. Names of Women.' Such as Eleanor and Elenor are cited. It seems to us the logical result of the argument is, that in order to be an accurate, reliable, and safe abstractor, a person must be versed in the Greek language, and not only so, but in all other languages from which names now used in this country may have been derived. There is no statute requiring a person to employ an abstractor. Therefore, every person must be so versed before he can safely purchase real estate. We cannot think this is the meaning of the rule, but at most it should be held to mean that if both names are derived from the same source, as defined and understood in the English language, then the use of one for the other should not be regarded as a misnomer."

|

The general rule of idem sonans was thus laid down by Lord Mansfield: "Where the omission or addition of a letter does not change the word so as to make it another word, the variance is not material." In Ward v. State, 28 Ala. 53, it was said: "If the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, then the variance is immaterial."

Chitty says (Cr. Law, 203): "If two names are in original derivation the same, and are taken promiscuously in common use, though they differ in sound, yet there is no variance." As Thomas and Tom (In re Wolvertone's Estates, L. R., 7 Ch. D. 198); Piers and Peter; Saunders and Alexander; Jane and Joan; Jean and John; Garrett, Gerat, and Gerald; Jo and Joseph (Com. v. O'Baldwin, 103 Mass. 210); Mary and Polly (Sowle v. Sowle, 10 Pick. 376); Sarah and Sally (Shelburne v. Rochester, 1 Pick. 470); Susan and Susannah (Trimble v. State, 4 Blackf. 435). Contra: Harry and Henry (Lessee of Gordon v. Holliday, 1 Wash. C. C. 289; Garrison v. People, 21 Ill. 535); Bart and Bartholemew (Curtis v. Mars, 29 Ill. 508); Seymour and Seigmund (Scholes v. Ackerland, 13 Ill. 650); Barent and Barnard (Rives v. Marrs, 25 Ill. 315); Edward and Edmund (Flood v. Randall, 72 Me. 439).

Applying these rules, we find the following adjudicated examples:

1. Idem sonans. Blackenship and Blankenship (State v. Blankenship, 21 Mo. 504); Whyneard and Winyard, pronounced Winnyard (Rex v. Foster, Russ. & Ry. 412); Michael and Michaels (State v. Houser, Busbee, 410); McInnis and McGinnis (Barnes v. People, 18 Ill. 52); Edmindson and Edmundson (Edmundson v. State, 17 Ala. 179); Deadema and Diadema (State v. Patterson, 2 Ired. 346): Conly and Connolly (Fletcher v. Conly, 2 Greene [Iowa], 88); Hutson and Hudson (State v. Hutson, 15 Mo. 512); Chamble and Chambless (Ward v. State, 28 Ala. 53); Segrave and Seagrave (Williams v. Ogle, 2 Str. 889); McLauglin and McGloflin (McLaughlin v. State, 52 Ind. 476); Usrey and Usury (Gresham v. Walker, 10 Ala. 370); Benedetto and Beniditto (Ahitbol v. Beniditto, 2 Taunt. 401); Anthron and Antrum (State v. Scurry, 3 Rich. 68); Petrie and Petris (Petrie v. Woodworth, 3 Cai. 219); Havely and Haverly (State v. Havely, 21 Mo. 498); M'Nicole and M'Nicoll (R. v. Wilson, 2 C. & K. 527); Juli and Julee (Point v. State, 37 Ala. 148); Keen and Keene (Com. v. Riley, Thach. Cr. Cas. 67); Droun and Drown (Com. v. Woods, 10 Gray, 477); Thonpson and Thompson (State v. Wheeler, 35 Vt. 261); Danner and Dannaher (Gahan v. People, 58 Ill. 160); Mary Etta and Marietta (Goode v. State, 2 Tex. Ct. App. 520); Faster and Foster (Foster v. State, 1 Tex. Ct. App. 533); Chin Chan and Chin Chang (Wells v. State, 4 Tex. Ct. App. 20); Tebruary and February (Witten v. State, 4 Tex. Ct. App. 70); William and Williams (Williams v. State, 5 Tex. Ct. App. 226); Preyer and Prior (Page v. State, 61 Ala. 16); Janury and January (Hutto v. State, 7 Tex. Ct. App. 44); Whiteman and Whitman (Henry v. State, 7 Tex. Ct. App. 388); Chatam and Chatham

(Roth v. State, 4 Tex. L. J. 393); Fayelville and Fayetteville (U. S. v. Hinman, 1 Baldw. 292); Read and Reed (State v. Potts, 4 Halst. 32); Augustina and Augustine; Chicopee and Chickopee (Com. v. Desmarteau, 16 Gray, 15); Fourai and Forrest (State v. Timmens, 4 Minn. 331); Cuffy and Cuffee or Cuff (State v. Farr, 12 Rich. 24); Coburn and Colburn (Colburn v. Bancroft, 23 Pick. 57); Gigger and Jiger (Com. v. Jennings, 121 Mass. 47); Wilkerson and Wilkinson (Wilkerson v. State, 13 Mo. 91); Rennoll and Rennolls (— v. Rennolls, 1 Chitty, 659); Lebering and Lebrun or Lebring (Ketland v. Adm'r, | 2 Wash. C. C. 201); Currier and Kiah (Tibbets v. Kiah, 2 N. H. 557); Kay and Key (Dickinson v. Bowes, 16 East, 112); Shapcott and Shipcott (Bowen v. Shapcott, 1 East, 542); Hinsdale and Hinsdall (Meredith v. Hinsdale, 2 Cai. 361); Symonds and Symons (Allen v. Symonds, 4 Mod. 347); Anny and Anne (State v. Upton, 1 Dev. 513); Giddings and Gidings or Gidines (State v. Lincoln, 17 Wis. 579); Finnegan and Finegan (People v. Mayworm, 5 Mich. 146); Burdet and Boudet or Boredet (Aaron v. State, 37 Ala. 106); Langford and Lankford (State v. Mahan, 12 Tex. 283); Marres and Mars (Com. v. Stone, 103 Mass. 421); Geesler and Geissler (Cleaveland v. State, 20 Ind. 444); Beckwith and Beckworth (Stewart v. State, 4 Blackf. 171); Conn and Corn (Moore v. Anderson, 8 Ind. 19); Adanson and Adamson (James v. State, 7 Blackf. 325); Little and Lytle (Lytle v. People, 47 Ill. 422); Kamberling and Kimberling (Houston v. State, 4 Greene [Iowa], 437); Bennaux and Beneux (Beneux v. State, 20 Ark. 97); Gardiner and Gardner (Rector v. Taylor, 7 Eng. [Ark.] 128); Gravaier and Gravier (Id.); Hutchinson and Hutcheson (State v. Stedman, 7 Port. [Ala.] 495); Bryon and Bryan (Tyser v. Bryan, 2 Dowl. 640); Rae and Wray (Vance v. Wray, 3 U. C. L. J. 69); Susan and Su-❘ sannah (State v. Johnson, 67 N. C. 55).

2. Not idem sonans. M'Cann and M'Carn (R. v. Tannett, R. & R. 351); Shakespeare and Shakepear (R. v. Shakespeare, 10 East, 83). (This was probably out of tenderness for the great name, for the great original himself spelled it in several ways differing more than these.) Sedbetter and Ledbetter (Zellers v. State, 7 Ind. 659); Tabart and Tarbart (Bingham v. Dickie, 5 Taunt. 814); Burrill and Burrall (Com. v. Gillespie, 7 S. & R. 469); Shutliff and Shirtliff (Gordon v. Austin, 4 T. R. 611); Prison and Brisson (Pennsylvania v. Huffman, Addison, 141); Donald and Donnell (Donnell v. U. S., 1 Morris, 141; McDonald v. People, 47 Ill. 533); Melvin and Melville | (State v. Curran, 18 Mo. 320); Sensenderfer and Sensenderf (Com. v. Bowers, 3 Brewst. 350); Della and Dellia (Vance v. State, 65 Ind. 460); McCoskey and McKaskey, McKlaskey, or McKloskey (Black v. State, 57 Ind. 109); Comyns and Cummins (Cruickshank v. Comyns, 24 Ill. 602); Gabriel Carter and Carter Gabriel (Collins v. State, 43 Tex. 577); Lindly and Lindsey (Roberts v. State, 2 Tex. Ct. App. 4); Fitz Patrick and Fitzpatrick (Moynahan v. People, 3 Colo. 367). (This is certainly wrong, for "Fitz" means nothing but "son.") Smith & Wesson and Smith & Weston (Morgan v. State, 61 Ind. 447); Franks and Frank (Parchman v. State, 2 Tex.

Ct. App. 228; S. C., 28 Am. Rep. 435); Otha and Oatha (Brown v. People, 66 Ill. 344); Abie and Avie (Burgamy v. State, 4 Tex. Ct. App. 572); King and Ring (1 East, 180, note); Saunders and Launders (Jenne v. Jenne, 7 Mass. 94); Hemessey and Hennessey (Com. v. Mehan, 11 Gray, 321); Amann and Ammon (Amann v. State, 76 Ill. 188); Barnep and Barnap (Queen v. Carter, 6 Mod. 168); May and Mary (Kennedy v. Merriam, 70 Ill. 228); Jeffery and Jeffries (Marshall v. Jeffries, 1 Hemps. 299); Jacques and Jakes (Jacques v. Nichols, T. T., 3 & 3 Vict. [Ont.]); Owen and Orrin (Ferry v. Mathews, T. T., 5 & 6 id.)

In respect to other words than proper names we find the following expressions held idem sonans: "Years of corn" for "ears of corn" (Stinson v. State, 5 Tex. Ct. App. 31); "Eiget" for "eight" (Somerville v. State, 6 Tex. Ct. App. 433); "Eigh for "eight," and "statue" for "statute' (State v. Coleman, 8 S. C. 237); "Gol" for "gold” (Grant v. State, 55 Ala. 201); "Fraudlently" for "fraudulently" (State v. Earp, 41 Tex. 487); "Cash" for case "(State v. Given, 32 La. Ann. 782); "Gulty withoit capitel purnish" for "guilty, without capital punishment" (State v. Ross, 32 La. Ann. 854); Gilding" for "gelding" (Thomas v. State, 2 Tex. Ct. App. 293); "Gilty" and "turm of too years for "guilty" and "term of two years" (Koontz v. State, 41 Tex. 570); "Sess his punishment deth" for "assess his punishment death" (Krebs v. State, 3 Tex. Ct. App. 348); "Fourman" for "foreman" (State v. Karn, 16 La. Ann. 183); “Fifty-too” for "fifty-two" (date) (State v. Hedge, 6 Ind. 330); "Prisin" for "prison" (Mc Coy v. State, 7 Tex. Ct. App. 379); "Confindendment" for "confinement," and "defendend" for "defendant" (McMillan v. State, 7 Tex. Ct. App. 100).

66

On the other hand, "burgerally" will not answer for "burglary" (Haney v. State, 2 Tex. Ct. App. 504); nor "guity" for "guilty" (Taylor v. State, 5 Tex. Ct. App. 569); nor "penty" for "penitentiary" (Keeller v. State, 4 Tex. Ct. App. 527); nor "statute" for "State" (Cox v. State, 8 Tex. Ct. App. 254; S. C., 34 Am. Rep. 746). The Missouri Supreme Court have held that "brest" will not do for "breast." See ante, Current Topics.

Two interesting historical instances may be cited to illustrate the principle underlying the principal case. Jeanne d'Arc was long called Joan of Arc, in history, until her right name was discovered. If she had been indicted under either name it would probably have been regular. (By the way, it is now discovered by a French antiquarian, that if she burned at all it was for love; for she was married and had children; she also was publicly rewarded for her military services, and died quietly in bed.) It has also been recently discovered that Napoleon's name was Nabulione. (So near have we come to realizing a proof of Archbishop Whately's mock conjecture that no such man ever lived.) An indictment of the great man by the English for disorderly conduct and worriment of Sir Hudson Lowe at St. Helena, would have been good under either name, not only upon the principle of the principal

case, but on that of idem sonans. The fop Simon, of Athens, who, as Becker tells us in "Charicles," changed his name to Simonides, would probably have been indictable under either name; and the same is certainly true of our Attorney-General MacVeagh, who, it is alleged, used to be McVey.

PRACTICE IN REGARD TO BILLS OF REVIEW.

UNITED STATES SUPREME COURT, NOVEMBER 7, 1881.

DAVIS V. SPEIDEN.

The ordinance of Lord Bacon in reference to chancery practice, "that no bill of review shall be admitted, etc., except that the decree be first obeyed and performed," is a rule of practice, and questions touching its performance are not considered as matters of strict right but as governed by a sound discretion. And the other ordinance "that no bill of review shall be put in except the party that prefers it enters into a recognizance," etc., is of the same general character.

A bill of review for error apparent on the face of the record, did not aver performance of the decree nor give excuse for non-performance. Upon demurrer upon this ground the court reversed the original decree. On appeal the General Term gave the complainant time to comply with the original decree, in which case it affirmed the decision of the court below; if he did not it reversed the decree. Complainant then, by affidavit, showed inability, by reason of financial embarrassment, to perform the original decree, but the General Term dismissed the bill of review. Held,

A

error.

PPEAL from the Supreme Court of the District of Columbia. Sufficient facts appear in the opinion. WAITE, C. J. This is a bill of review for error apparent on the face of the record, and we think with the court below, that on the merits it presents a case for reversal, because the averments in the original bill were not sufficiently precise and definite to warrant a decree such as was rendered, without proof. The only question therefore is whether the court was right in dismissing the bill because the decree had not been performed.

One of Lord Bacon's ordinances "for the better and more regular administration of justice in chancery, to be daily observed, saving the prerogative of the court," was that "no bill of review shall be admitted, or other new bill to change matter decreed, except that the decree be first obeyed and performed," save only where the act decreed to be done would extinguish a party's right at common law. Bacon's Law Tracts, 280. This ordinance is the foundation of the practice not to entertain bills of review until the decree to be reviewed has been performed, or its performance excused; the object being, as was said by Chancellor Kent, in Wiser v. Blachly, 2 Johns. Ch. 488, "to prevent abuse in the administration of justice, by the filing of bills of review for delay and vexation, or otherwise protracting the litigation to the discouragement and distress of the adverse party." That this ordinance was intended for the regulation of procedure rather than to limit the jurisdiction of the court, seems to us apparent, because not only on its face the "prerogative of the court is saved," but as early as 1632, in Cock v. Hobb, 5 Russ. 235, a bill of review haying been filed without performance of the decree, the cause was permitted to proceed on giving security for the debt which was decreed to be paid. Afterward, in 1674, in Savil v. Darrey, 1 Cas. in Ch. 42, where to a bill for the review of a decree for a large sum of money, the rule was pleaded "that the defendant ought first to pay the money, before the bill should be brought into court," the lord chancellor said: "Let him give

*

good security for the money and we will dispense with the rule." Again, in 1682, in Williams v. Mellish, 1 Vern. 117, where a motion was made that proceedings on a decree be stayed until a bill of review could be heard, it was ordered that the decree should be performed before any bill of review would be allowed, "unless the plaintiff * ** will swear himself not able to perform the decree, and will surrender himself to the Fleet, to lie in prison until the matter be determined on the bill of review." Afterward, during the year 1684, in Fitton v. Macclesfield, 1 Vern. 264, on a motion that a bill of review might be admitted without the payment of costs in a former suit, amounting to £150, the plaintiff having made oath that he was not worth £40 besides the matter in dispute, leave was granted him to bring in the bill without the payment, and although when the bill of review came on for hearing it was insisted that the order dispensing with the judgment of the costs ought to have been set forth in the bill, and it had not been done, the court passed by the objection without notice, and dismissed the case on its merits. So in 1685, in Palmes v. Danby, 5 Russ. 240, Danby, the defendant to a bill for the review of a decree for the payment of money, put in a plea and demurrer, and among other causes of demurrer assigned that "the decree had not been performed by the complainants in review, as ought to have been done by the rules and practice of this honorable court before they can be permitted to bring a bill of review," but notwithstanding this the court finally heard the cause and made a decree on the whole matter. These cases clearly show that from the beginning the ordinance was treated as a rule of practice, and questions touching obedience to its requirements were not considered as matters of strict right, but as governed by a sound discretion. Taylor v. Person, 2 Hawks, 300.

Another of the ordinances of Lord Bacon, promulgated at the same time, provided "that no bill of review shall be put in, except the party that prefers it enters into a recognizance with sureties for satisfying of costs and damages for the delay, if it be found against him." Bacon's Tracts, supra. This is of the same general character with the other. That provides that a bill of review shall not be admitted, that is to say, received, until the decree has been performed, aud this that such a bill shall not be put in until the prescribed security is given. Both are administrative rather than jurisdictional. The order for security was as imperative as that for performance, but we think it would not be seriously claimed that a bill which could be filed as a matter of right was, while that rule was in force, subject to demurrer if it failed to set forth that a recognizance had been entered into. Undoubtedly a court would strike a bill from the files if it got there, without a performance of the decree, or the security required, unless good cause was shown why it had not been done. That would be a far different thing from dismissing a bill on demurrer for like cause. We are aware that under another ordinance of Lord Bacon in respect to bills of review for newly discovered matter, and which provides that such a bill "may be grounded by special license of the court, and not otherwise" (Bacon's Tracts, supra), it was held by the master of the rolls, in Bainbridge v. Baddely, 9 Beav. 548, that a demurrer must be allowed unless such special license is averred, and that this case was followed hesitatingly by the vice-chancellor in Henderson v. Cook, 4 Drew. 314, because Lord Redesdale had said (Mit. Pl., by Jer., 89), it seemed necessary to state in the bill the leave obtained to file it. Whatever may be said in such cases, which are really only bills in the nature of bills of review, and which can only be filed on special license, we think it clear that as to bills which relate to errors on the face of the decree alone, and which may be filed without leave, no such rule prevails. The filing without performance is in the