1825. The Plattsburgh. What, then, are the explanations attempted to be given upon this subject? It is said, that Smith and Stark were employed by Wanton to go to the coast of Africa to transact business for him, and that they were mere passengers. But what business of Wanton? None is proved, or attempted to be proved. And who, in fact, is Wanton? He is the consignee of Stark, both for the Plattsburgh and the Eros. He is the shipper of the cargo for the coast of Africa, and, upon the face of the bill of lading, no other person appears as owner; and it is now said, that he is what is called an actionist, or share holder, in the voyage; and, by the Spanish laws, or course of trade, such persons do not appear as owners on the papers. It is remarkable, that if such be the law, Marino's name should not appear on the bill of lading, and that Wanton's alone is stated. The ambiguous fact is alleged, that no freight is payable, because the vessel and cargo are united for the voyage. Surely it must have been in the power of the claimant to have given much more full and exact information on this point. Then, as to Captain Smith's being a mere passenger, on which so much reliance is placed by the claimant, how does it comport with the facts upon the record? At the time of the capture he appeared as a principal personage, and evidently conducted himself differently from a person who had no interest in the voyage, and was a mere spectator. But what is decisive, to show that this is a mere disguise, too thin not to be The Platts burgh. easily seen through, is the letter found on board, 1825. written by him, to the mate, a short time before the vessel sailed from St. Jago, in which the mask is stripped off, and he appears in his natural character as master. It is as follows: " Sir, I wish you to get the schooner down to Moro in the morning, and get the men quartered to the guns, and station them on the tops and forecastle, the same as on board armed ships, and get all ready for going to sea to-morrow night. After you get down to the Moro, send the boat, with four men, for me. Yours, Jos. Smith." Nothing can be more unlike the character or authority of a passenger, than these directions. They belong to one who has a right to command, and knows he is to be obeyed. The language imports a right to control the voyage, and could be dictated only by one in possession of the effective command. It would be absurd for an American passenger to address such a note to an American mate, who was responsible to a Spanish master for all his orders and conduct. It would be an exercise of credulity far beyond any just claims of the evidence, to lead the Court to the belief, that Captain Smith was a mere passenger. The circumstances of the case are at war with the supposition, and the positive testimony of Ferver, and Flower, completely overturns it. Without going more at large into the evidence, in which there is much matter open to observation, it is sufficient to state, that in the opinion of the Court, the reality of the asserted sale to Marino is not established by the proofs, and our VOL. X. 19 1825. conclusion is, that the unlawful enterprise had its origin at Baltimore. Thomas GABRIELLE BROCKENBROUGH, JOHN HARVIE, ED- Although bills of review are not strictly within the statute of limita- c. 20. s. 22., and of 1803, c. 353. [xciii.] s. 2., to five years after the decree, the same period of limitation is applied to bills of review. Quare, Whether a bill of review, founded upon matter discovered since the decree, is also barred by the lapse of five years? It is in the discretion of the Court, to grant leave to file a bill of review for that cause. APPEAL from the Circuit Court of Kentucky. The appellant, Thomas, filed in that Court, at the November term, 1818, a bill to review and reverse a final decree of the same Court, pronounced at the May term, 1810, by which the plaintiff in the bill of review, and defendant in the original suit, was decreed to con " Thomas V. Harvie's heirs. vey to the heirs of John Harvie, the plaintiffs in 1825. the original suit, a certain tract of land, which formed the subject of controversy in that suit. The bill of review, after stating the substance of the original bill, which was filed by John Harvie, and the bill of revivor, after his death, in the name of the present respondents, in whose favour the decree was passed, assigns the following errors in the said decree, as causes for its reversal. 1. That the entry of James Clark, under whom the said John Harvie claimed the land in dispute, was void for uncertainty. 2. That before the final decree was passed, the said Harvie died, leaving a will, by which he devised the land in controversy to his sons, Edwin and Jacqueline, two of the plaintiffs in the bill of revivor, of which will the plaintiff was wholly ignorant until long after the final decree was entered. 3. That the said Edwin Harvie died previous to the said decree, and his right in the said land descended to his heirs at law, John and Lewis, who were no parties to the said suit, of which facts the plaintiff was wholly ignorant until long after the decree complained of. To this bill of review, the defendants plead, in bar, the decree passed and enrolled in the original suit, and the prosecution by the plaintiff, Thomas, of a writ of error to the Supreme Court to reverse the same, which was dismissed, and then demurred to so much of the bill as sought to review and reverse the said decree. Upon argument of the plea and demurrer, the Court below 1825. Thomas V. Harvie's heirs. Feb. 10th. dismissed the bill of review, and the cause was brought, by appeal, to this Court. Mr. Talbot, for the appellant, argued upon the merits of the original cause, to invalidate the title of the plaintiff in that cause, founded upon the entry of Clark; and, also, upon the other errors assigned in the bill of review. He insisted, that there was no period of limitation to bills of review, by the act of Congress, and that, in this case, the bill of review being founded upon newly discovered evidence, and having been permitted by the Court below, in its discretion, to be filed, it must be determined by the error in the original decree. In England, it is usual to recite all the important facts of the cause in the decree. In this country, this is not done, and, therefore, the pleadings, exhibits, and proofs, must be resorted to, in order to discover the errors apparent upon the face of the original decree. Mr. Bibb, contra, insisted, that the first error assigned upon the merits of the original cause, was no ground for a bill of review. The errors in law must be apparent on the face of the decree. If a fact be mistaken at the hearing, and in the decretal order, it must be rectified by a rehearing, which rehearing cannot be after decree enrolled. The other errors assigned, did not prejudice the appellant, nor had he any interest in correcting them. But the conclusive a Comb v. Proud, Cases in Ch. 54. 8 Bl. Comm. 454. |