inserting purchase, so as to make it read repurchase, instead of redeem. This is conclusively proved by Clark, p. 142; by Smith, p. 143; by Pope, p. 144; and, moreover, why was not the whole letter copied?

offered him "$10,000 in Huntsville property, houses and lots." How much Huntsville property Talbot owned when, in 1827, he made the offer, or how much it was then worth, does not appear; nor does it appear when he sold for $4,000, nor how much he then owned, nor This lame and desperate effort, instead of how much he had sold intermediately. Nor weakening, strengthens the grounds of the deis all this very material; for his offer being cree. If such a letter was ever received by $10,000 in Huntsville property, Russell, had Wing, the fact that the word redeem was in he acceded to the proposition, would have been it shows that the parties understood that the entitled to property worth $10,000. contract was a mortgage; and if the whole exJohnson's explanatory deposition is alto-tract was originally a forgery, the same fact gether immaterial. Having said, in his form- proves that Southard, when he had it preer deposition, that "Russell was to pay the pared, used the proper word, redeem, without money in four months and take back his farm," knowing that there would be any equity of he now says, that "if this expression implies redemption after forfeiture, and after Russel that Russell was compelled to pay the money, had agreed to waive it--and to show falsely it implies more than I intended" and says that his personal recollection is, that Russell had the power or the right to repay the money in four months and take back his farm." And this impression, he now says, he derives chiefly from the defeasance itself, as his memory "might be treacherous."

that he had waived it was doubtless the object of the forgery-but finding, after the decree of this Court, that he was mistaken in that, the word re-purchase was fraudulently subsisted for redeem.

V. The Alabama schedule was known and relied on in the original suit, and could Now does all this amount to any thing sub-not be useful for the purpose for which it is stantial? According to all the authorities on charged in the Bill of Review. the subject, would not the words used in his VI. The failure to sell the land when offered last deposition, as well as those in his first, be at auction could have no influence-and if it constructed as prima facie importing a mort-ever could, it comes too late, as it ought to gage? And can his own erroneous construc- have been known by Southard during the tion of them change their legal effect? Did he pendency of the suit to redeem. not write his original deposition, was he not closely examined, and did he not carefully prepare his answers? And does he not tacitly admit that he used and intended to use the words contained in his first deposition? His only explanation now is, not that he did not use or intend to use these precise words, but only that he did not intend that they should be construed as importing what this Court they legally mean-in other words, though the Court says that they import a mortgage, he says that he does not think they imply that Russell was bound to repay the money?

says

Surely this discovery can be no ground for a Bill of Review: 1st. because there was no mistake in the original deposition; 2d. because the discrepancy between that and the last one is not material; 3d. because the Court, and not the witness, must decide on the legal effect of the facts proved, and the legal construction of the words used; and 4th, because a Bill of Review is never allowed for the purpose of explaining the testimony of a witness. Were it permitted the consequences would be mon

strous.

Having thus presented an outline of the facts of this case and of the principles which should govern the decision of it, we will not amplify by argument to make it more manifest than we presume it already appears to the Court, that there is no plausible ground for reversing the decree dismissing the Bill of Review.

There is no complaint that, in the opinion of this Court sought to be reviewed on alleged discoveries of new proofs, there was any error of law apparent on the face of the decree or of the record. Nor is it pretended by Southard, in his bill, that this Court erred in its construction and application of the facts embodied in the original record. He would not have been allowed to file a Bill of Review on any such allegation had he chosen to make itWebb vs. Pell, 3d Paige's Ch'y Rep's, 368; Dougherty and wife vs. Morgan's Ex's, 6 Mon., 153.

It would be unforensic and impertinent, therefore to attempt by argument to vindicate that opinion. Were it necessary or proper to do so, we should expect to sustain it, beyond IV. Of the alleged extract of a letter from all question, on the grounds on which the Russell to Wing, dated December 19th, 1827, Court was pleased to place it, and on others there is no proof. It is believed to be spurious also which the Court viewed as superfluous in and false. The purpose for which it has been a case so plain. The opinion as rendered is fabricated was to show that Russell's convey-even beyond the power of the Court itself, exance to Southard was not a mortgage. The cept on some new and extraneous matter or latter, as exhibited, commences with this sen- documentary proof, brought before it by the tence: "You may say to Southard that I shall not RE-PURCHASE the estate." If any such letter had ever been received by Wing, redeem, and not re-purchase, was the radical word. The extract itself, since it was first written, has been altered by obliterating deem, and

Bill of Review, and of such a material and decisive character as to satisfy the Court that, had it appeared in the original record, the original decree of the Circuit Court would have been affirmed, instead of being, as it was, reversed.

PRELECTION.

A lot of 20 acres of land, in the city of Louisville, having been directed to be sold, by a decretal order, for paying a debt of about $400, which had devolved on the owners, who were all infants-Bainbridge, as thier volunteer friend, made a private contract with John I. Jacob, by which he was to have the whole lot for $800-but, as a sale of more of the ground than would pay the debt would be illegal and void, they agreed also that Jacob should, ostensibly, buy the whole for the debt-which was accordingly done-and the Commissioner having reported that no person would pay the debt for a less quantity, the Court, ignorant of the facts, confirmed the sale. A Bill filed by the Heirs to set aside the sale was dismissed by the Circuit Judge, and the Court of Appeals having affirmed the decree, the following petition was filed for a re-hearing. But it was overruled SUB SILENTIO.

50

istrator had several valuable slaves and other personal estate. The inference from these indisputable facts, all of which seem to have been overlooked by the court, is, that either

The opinion delivered by Judge Hise in this, enough for the exigency. Moreover, Baincase, as the judgment of this court, professes bridge proves that Simrall's heirs and adminto recite all the material facts "precisely" as the record exhibits them. Instead of doing so it has omitted essential facts on which we relied with more confidence than on everything else. The omitted facts were, we presume, other property would have been sold to pay overlooked, and not considered by the court. the decree, or that Bainbridge and Pope The facts to which we allude are: 1st. Those would have procured the amount of it by loan; conducing to show that, had the land been or that, if a decretal sale had been fairly sold without the intervention of Jacob, one tried, Bainbridge would not have permitted half of it, at the utmost, would have satisfied the whole lot to be sacrificed for $457. That the decree. 2d. Those conducing to show the whole would not have been sold is not that Bainbridge would never have permitted more than about half of the land to be sold under the decree; and 3d. Those showing that money enough to satisfy the decree would have been obtained by loan or by the sale of slaves or other property before Bainbridge would have permitted a greater sacrifice than was made by his agreement with Jacob.

only rendered almost certain by some of the foregoing considerations, but is made quite sure by the fact that Jacob gave $800 for the whole, and consequently would certainly have given $457 for something less than the whole of a lot which sold for $6,000 in 1818, and would now sell for $150,000. But Jacob having agreed with Bainbridge to give $800 The opinion assumes that, if Jacob had not, for the whole, provided it should be formally by his private agreement with Bainbridge, knocked off to him by the commissioner for agreed to pay $800 for the whole lot, it could the amount of the decree, Bainbridge would, not have been sold for more than the amount therefore, neither borrow the money, nor raise of the decree ($457,) and would have been it by the sale of other property, nor bid against thus sold. The only reason assigned, or which Jacob, nor, if he could prevent it, permit any could be imagined for that conclusion, is the other person to bid against him. He testifies fact, that, at the mock sale made by the com-that, after he had made the final arrangement missioner, Jacob bid the amount of the decree with Jacob, he eonsidered the land as sold and for the entire lot, and no person bid that much could not have made or sanctioned any other for less than the whole! With due respect disposition or sale of it. And he also testifies we may say that this fact, when analyzed, that, at the commissioner's ostensible sale, leads to no such conclusion, and that other Dr. Wilson, with whom he had tried to nefacts, not stated and probably not considered gotiate a private sale, inquired of him whether by the court, make it altogether improbable he had effected any such sale, and he replied and unreasonable. If the fact that no person that it was all arranged with Jacob, and that, bid against Jacob could authorize the deduc- thereupon, Wilson left the ground. This fact tion that, had he made no private purchase, probably prevented others, as well as Wilson, still he would have bought the whole lot for from bidding, as it should be presumed to the amount of the decree without any compe- have been known to others, especially all who tition, this court must have erred exceedingly were present at the sale and whom Bainbridge in not tolerating a like inference from the same would, of course, not allow to bid, because facts in Wilson's v. Wilson, &c., 9 B. Monroe. competition would frustrate the arrangement Bainbringe proves that it was with hesitancy with Jacob. This seems to be all morally and reluctance that he finally consented to let certain, but it is neither noticed in the opinion Jacob have the lot for $800-he certainly nor could, we apprehend, have been considwould not have taken less. He and Alexan-ered by the court. Hence, we feel authorized der Pope, both wealthy men, had offered to borrow, on their own credit, money to satisfy the decree; and, scarce as money may have been, there could be no doubt that their cndorsement could have procured the loan of

to say that, without facts and against conclusive facts, the opinion assumes that, had not the arrangement been made with Jacob, the whole of the lot would "probably" have been sold to satisfy the decree. And had none of

the foregoing considerations appeared, not with his secret, and hard, and unlawful aronly would there be no sufficient ground rangement. for the assumption, but it would be crushed But the indefensible assumption we have by the tacit admission, by Jacob, of the alle- been combatting seems to be the pivot on which gation that, without his interference, half of the judgment of affirmance turns; consequently the lot or less would have satisfied the decree. we have reason to hope that a reconsideration Under our Code of Practice that allegation of the case will plant a very different fulcrum should be taken for confessed; and the same on which no other than an essentially different consequence would result from the application judgment can rest.

trust for the original owners, who were infants, and never did anything to estop them to assert their equity or omitted to do anything necessary for maintaining it.

of the common law principles of equity. An The court virtually concedes, as every enanswer must respond to every material allega-lightened tribunal must concede, that the comtion explicitly and without evasion. Story's missioner's sale was void, and that, conseEquity Prac., sec. 852. If the fact charged quently, Jacob acquired and held the lot in be within the respondent's personal knowledge, he must answer positively, unless the fact be so ancient as to authorize the presumption that the respondent's memory of it has become dim. Lord Clarendon fixed seven years as a period beyond which the memory should not be required or presumed to go. But beyond that time the answer to an allegation once within the respondent's personal knowledge, though it need not be positive, must state explicitly and fully his "belief." Ib. sec. 854-5, and

notes.

The same authority shows that, when the fact alledged had never been within the respondent's knowledge, he must respond fully and directly as to his belief concerning it; and that in any of those aspects of the case, silence is taken to be an admission of the fact charged. See 5 Dana, 80; 7 Ib. 296; 3 B. Monroe, 13; Ib. 185; 4 Ib. 488.

In this case it should be presumed that Jacob knew whether, at a fair public sale, unaffected by any private arrangement, less than the entire lot would have satisfied the decree, because he certainly knew whether he himself, would have bid the amount of the decree for a portion of the lot. But, as to that allegation he is dumb-he does not even intimate any opinion or belief. A general denial "of all other allegations," not responded to, would be no response. Story, sec. 852, supra. But Jacob did not make even such denial, he only said that he required proof of the allegations be had noticed, "as he does of all the allegations not herein admitted." The fact that half or less of the lot would have sold for the amount of the decree should consequently be taken as admitted by the answer of Jacob. But the court does not appear to have noticed even this important, and as we think, decisive mat

Then unless, as assumed in the opinion, the purchase by Jacob was, in fact, beneficial rather than injurious to the infants, on what possible or imaginable ground shall they be denied the privilege of asserting their beneficial right and of obtaining, at last, the enjoyment of it.

It cannot be on the ground that the proof is insufficient to show that Jacob gave more than the amount of the decree for the lot; because Bainbridge's testimony to that effect is not only unimpeached and uncontradicted, but is intrinsically credible, is fortified by the cotemporaneous letters and accounts found among the papers of Mrs. Simrall, and is made conclusive by the character of Jacob's answer not denying the allegation, but professing nonrecollection of a fact which he could not forget, and had recited to another witness just before this suit was instituted.

Nor on the ground that the sale, as made, was ever ratified by Simrall's heirs; because they knew nothing about the contract, were incompetent to bind themselves, and neither did nor omitted to do any act whereby ratification or estoppel, express or implied, could be tortured by the court. Nor on the ground that the heirs received and enjoyed the excess of price over the amount of the decree; because it was not appropriated, as Bainbridge desired and advised, to the improvement and preservation of their estate, but was paid to and consumed by their mother in fractions during two years after the date of the sale; and not only is there no proof that the expenditure was to their use, but there is no reason for presuming that it was, and especially as there is not even an allegation or intimation in the On a full and careful consideration of the record that it was. Besides, the fact, if relied foregoing facts, we cannot think that this on, ought to have been litigated and might court would have said or could now say that have been established, and even then should it was probable that, if Jacob had not made not deprive them of their land sold without the arrangement he did, the whole lot would their knowledge or consent; because if, during have been sold for not more, and perhaps less, infancy, they had consumed the proceeds, they than the amount of the decree-nor can we did not know it, and a lien on their land for believe that the court could fail to conclude the amount would be the utmost equitable conthat either no part of the lot would have been sequence as against them, unless, since the sold, or that half or less of it would have sat-period of their infancy, there had been some isfied the decree, had not Jacob intervened act of implied ratification, for presuming

ter!